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Johnson v. City of Fayetteville

United States District Court, E.D. North Carolina, Western Division

March 4, 2015

DARWIN JOHNSON, et al., Plaintiffs,
CITY OF FAYETTEVILLE, et al., Defendants

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For Darwin Johnson, Latonja D. Johnson, Brenda J. Mathis, Plaintiffs: James H. Locus, Jr., LEAD ATTORNEY, Locus & Associates, Fayetteville, NC.

For City of Fayetteville, Shane Koehler, Individually, Jennifer Rodriguez, individually, Phyllis Jernigan, individually, Chief Thomas Bergamine, in his official capacity as Chief of FCPD and individually, Dale Iman, in his official capacity as City Manager and individually, Lt Kevin Croyle, Defendants: Brian S. Cromwell, Collier R. Marsh, LEAD ATTORNEYS, Christopher M. Thomas, Parker, Poe, Adams & Bernstein, LLP, Charlotte, NC.

For Heather Nicole St. John, Defendant: David L. Levy, LEAD ATTORNEY, Hedrick, Gardner, Kincheloe & Garofalo, LLP, Charlotte, NC.

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James C. Fox, United States District Judge

This matter is before the court on the Motion for Partial Summary Judgment filed by Defendant Heather St. John [DE-208]; Motion for Partial Summary Judgment [DE-238] filed by Plaintiffs Darwin Johnson, LaTonja D. Johnson, and Brenda Mathis; and the Motion for Summary Judgment [DE-240] filed by Defendants City of Fayetteville, Shane Koehler, Jennifer Rodriguez,[1] Phyllis Jernigan, Thomas Bergamine, Dale Iman and Kevin Croyle (collectively, " City Defendants" ). All motions have been fully briefed and are ripe for ruling. For the reasons stated below, St. John's Motion for Partial Summary Judgment [DE-208] is ALLOWED; Plaintiffs' Motion for Partial Summary Judgment [DE-238] is DENIED; and the City Defendants' Motion for Summary Judgment [DE-240] is ALLOWED IN PART and DENIED IN PART.


The procedural history of this case was fully set forth in the court's December 11, 2014 Order [DE-317], and the court sees no need to repeat it here, other than to state what claims remain in this action:

1. Claims against Defendant St. John: Plaintiff Darwin Johnson's and Plaintiff Brenda Mathis' § 1985 claim for civil conspiracy. Plaintiff LaTonja Johnson's claim for negligence.
2. Against Officer Koehler in his Individual Capacity: Plaintiff Darwin Johnson's (1) § 1983 claims for false arrest (unreasonable seizure), excessive force, and malicious prosecution; (2) § 1985 claim for civil conspiracy; and (3) state law claims of IIED, assault and battery, and false imprisonment. Plaintiff Mathis' (1) § 1983 claim of excessive force; (2) § 1985 claim for civil conspiracy; and (3) state law claim for assault and battery.
3. Against Officer Rodriguez in her Individual Capacity: Plaintiff Darwin Johnson's and Plaintiff Mathis' § 1985 claim for civil conspiracy.
4. Against Defendant City of Fayetteville: Plaintiffs Darwin Johnson's and Mathis' (1) state law claim of negligent hiring, retention, supervision, training, and discipline and (2) municipal derivative § 1983 claims based on a policy or custom.
5. Against Defendant City of Fayetteville, and Defendants Bergamine and Iman in their Individual Capacity: Plaintiffs Darwin Johnson's and Mathis' municipal and supervisor derivative § 1983 and § 1985 claims based on their negligent hiring of and failure to train Officer Koehler, as well as Plaintiffs Darwin Johnson's and Mathis' municipal and supervisor derivative § 1983 and § 1985 claims based on the institution and maintenance of a widespread discriminatory policy.
6. Against Lt. Croyle. Plaintiffs Darwin Johnson's § 1983 claim for illegal seizure (malicious prosecution). Plaintiffs Darwin Johnson's and Mathis' § 1985 claim for civil conspiracy.

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7. Defendant Sgt. Jernigan. Plaintiff Darwin Johnson's § 1983 claim for illegal seizure (malicious prosecution). Plaintiffs Darwin Johnson's and Mathis' § 1985 claim for civil conspiracy.


The facts, stated in the light most favorable to the Plaintiffs,[2] are as follows.

A. Events of April 17, 2011

On April 17, 2011, Plaintiff LaTonja Johnson (" Mrs. Johnson" ) was patronizing a local McDonald's Restaurant on Raeford Road via its drive thru. Dep. of LaTonja Johnson [DE-219-5] at 9, 70. Mrs. Johnson's mother-in-law, Plaintiff Brenda Mathis (" Mrs. Mathis" ), also was in the vehicle. Id. at 9. This McDonald's franchise offers customers the option of ordering their food at one of two drive-thru lanes. Id. at 70-71. The lanes then merge together after the drive-thru order speaker. See Overhead View of McDonald's [DE-243-4].

Mrs. Johnson lined up in the outside lane (" Lane Two" ). Dep. of LaTonja Johnson [DE-219-5] at 71. Defendant St. John was waiting in the inside lane (" Lane One" ). Id. at 79. Defendant St. John yelled and screamed at Mrs. Johnson, saying Mrs. Johnson cut in the line. Id. at 80. Mrs. Johnson placed her order in Lane Two and then moved her car forward in the direction of the cashier, and stopped behind the other vehicles waiting in line. Id. 73. Defendant St. John placed her order in Lane One after Mrs. Johnson had placed her order. Id. at 75. Defendant St. John then drove her truck over the curb to the left of her truck, and in the process of doing so, struck Mrs. Johnson's vehicle. Id. at 75-76. While she was driving over the curb and striking Mrs. Johnson's vehicle, Defendant St. John yelled that she had the police on the phone. Id. at 89-90. Defendant St. John then proceeded to the cashier. Id. 90-91. Mrs. Johnson put her vehicle in park, and called her husband, Plaintiff Darwin Johnson (" Mr. Johnson" ), and then 911. Id. at 89-90. After purchasing her food at the window, Defendant St. John drove her car around the McDonald's building and parked her car across the parking lot in view of Mrs. Johnson's vehicle. Id. at 92-93. Mrs. Johnson kept her car in the drive-thru while waiting for the police. Id. at 91. She exited her vehicle and stood next to it, along with Mrs. Mathis and the manager of the McDonald's, Elizabeth Johnson.[3] Id. at 93.

While Defendant St. John drove through the parking lot and after she parked her truck, she yelled out the window of her truck several times that she knew members of the Fayetteville police department (" FCPD" ). Id. at 99. Mrs. Johnson told Manager Elizabeth Johnson that Defendant St. John better not get out of her truck. Id. at 95. Mrs. Johnson also eventually asked Defendant St. John, " What does that mean?" in response to St. John's statements that she knew members of the FCPD. Id. at 95-96. According to Mrs. Johnson, Defendant St. John told her to wait and see, and that they were going to take care of her. Id. at 99, 130-31.

Defendant St. John had three children in her truck with her: her son and daughter, and the son of her fiancee. Dep. of

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Heather St. John [DE-323-1] at 18-19. After her collision with Mrs. Johnson, she called Defendant Officer Jennifer Rodriguez, the mother of her fiancee's son and an officer with the FCPD. Id. at 41, 57-58. Defendant St. John told Officer Rodriguez she had been in accident, and told her that her son was fine. Id. at 58. Defendant St. John also said that the other lady involved in the accident was yelling at her. Dep. of Jennifer Rodriguez [DE-323-2] at 14. Officer Rodriguez told St. John to roll up her windows and call 911. Id. at 14. They ended the phone call, and Defendant St. John called 911. Dep. of Heather St. John [DE-323-1] at 59. St. John told the dispatcher she had been in an accident at McDonald's, she had her children with her, and the other driver was yelling and swearing. Id.

After Mr. Johnson arrived at the scene, he stood with Manager Elizabeth Johnson next to the Plaintiffs' vehicle, while Mrs. Johnson and Mrs. Mathis stood in parking spaces with a family friend, Lillie Shelton, whom Mrs. Johnson had called after the accident. Dep. of LaTonja Johnson [DE-219-5] at 100.

Defendant St. John stayed on the phone with the dispatcher until Officer Rodriguez called again. During their second conversation, Officer Rodriguez could hear the children crying, and could hear background noises of someone yelling. Dep. of Jennifer Rodriguez [DE-323-2] at 16. Defendant St. John told Rodriguez that family members of the other driver had arrived, and they were around her truck. Id. at 20. Officer Rodriguez told St. John not to have any communication with the other driver and to wait for the police. She also told St. John that she was going to call to see if the police had anyone reporting to the scene. Id. at 16. Officer Rodriguez then called the 911 dispatch center, and asked if they had any anybody en route to the McDonald's. Id. at 17. She was told they did not. Id. She then called the watch commander officer's and spoke to Lt. Croyle, telling him that her son's " stepmother" was involved in a wreck at McDonald's and that dispatch had no one to send. Id. at 39. Lt. Croyle told her he didn't have anyone to send, so Officer Rodriguez then called another watch commander's office, and spoke to Lt. Tew. Id. at 40-41. He too indicated he had no one to send to the scene. Id.

Although Officer Rodriguez denies speaking to anyone else in the FCPD about the situation, Defendant Phyllis Jernigan, a patrol sergeant with the FCPD, contends that Officer Rodriguez called her and told her that Rodriguez's babysitter was involved in an accident, Rodriguez's son was in the car, and people were surrounding the babysitter's car. Dep. of Phyllis Jernigan [DE-219-6] at 10-11, 91. Sgt. Jernigan testified that at that time Officer Rodriguez called her, she already had dispatched Officer Koehler to the scene. Id. at 10-12, 135-36. When she got off the phone with Officer Rodriguez, Sgt. Jernigan called for someone to back-up Defendant Koehler. Id. at 93.

Officer Koehler testified that he received a call from Sgt. Jernigan, informing him there were vehicles involved in an accident in the parking lot of a McDonald's and several people were surrounding one of the vehicles. Dep. of Shane Koehler [DE-219-1] at 80-81. Sgt. Jernigan directed Koehler to respond to the scene, and told him she would send someone else to assist him as soon as she could. Id. at 81-82. At the time Officer Koehler received Sgt. Jernigan's directive, he was at the scene of a traffic accident. He left that scene to respond to the reported active disturbance at McDonald's. Id. at 82-83.

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Meanwhile, Defendant St. John called 911 again, and the dispatcher told her to keep her windows rolled up and not to do anything because police were arriving. Dep. of Heather St. John [DE-323-1] at 60. Officer Koehler arrived at the McDonald's and parked next to Defendant St. John's truck. Dep. of LaTonja Johnson [DE-219-5] at 102. Defendant St. John told the dispatcher an officer had arrived, and the dispatcher told St. John to let him know where she was by waving to him. Dep. of Heather St. John [DE-323-1] at 62, 64.

When Officer Koehler exited his patrol car, he screamed " move the vehicle, move the vehicle, move the vehicle" at Plaintiffs. Dep. of LaTonja Johnson [DE-219-5] at 103. He then went to Defendant St. John, spoke to her for a few seconds, during which time Defendant St. John pointed across the parking lot toward Plaintiffs. Id. at 103, 132. At this time, Lillie Shelton said to Mrs. Johnson, " Why is he going to her vehicle first?" Id. at 112. Officer Koehler then stormed across the parking lot toward Plaintiffs running and yelling. Id. at 103-04. Officer Koehler yelled to move the " fucking vehicle," and when Mr. Johnson responded " I can't," Officer Koehler grabbed him and started kicking him, attempting to take him down. Dep. of Darwin Johnson [DE-219-7] at 59. A male bystander at the scene told Mr. Johnson not to resist, and Mr. Johnson raised his hands in the air and said he was not resisting. Id. at 86-87. Officer Koehler then shoved and pushed Mr. Johnson across the parking lot, into the side of his patrol car. Id. at 87-88. Mr. Johnson fell to the ground. Id. at 89. Officer Koehler handcuffed him and then put him in the police car. Id. at 94, 242. Mr. Johnson's mother, Mrs. Mathis, approached Officer Koehler and told him what he was doing to her son was unnecessary. Officer Koehler pushed Mrs. Mathis away and into the side of the patrol car. Dep. of Shelton [DE-219-8] at 52-53.

Defendant. St. John called 911 again, and said more police were needed. Dep. of Heather St. John [DE-323-1] at 87. Lillie Shelton also called 911. Dep. of LaTonja Johnson [DE-219-5] at 85. According to Mrs. Johnson, Officer Koehler than radioed that all calls regarding the McDonald's should be cancelled. Id. at 191. Mrs. Johnson then called 911 again. Id. at 191-92.

Sgt. Jernigan received a call from Officer Koehler that a supervisor was needed at the McDonald's because of damage to city property. Dep. of Phyllis Jernigan [DE-219-6] at 28. When Sgt. Jernigan arrived at the scene, she first approached St. John, and spoke with Officer Rodriguez on St. John's telephone, telling her that everyone was okay, but someone had to be arrested. Dep. of Rodriguez [DE-219-9] at 21; Dep. of Shelton [DE-219-8] at 115-16. Sgt. Jernigan then spoke with Officer Koehler, who told her that when he first arrived on the scene, he saw a woman in a black truck mouth " help me" and he walked over to her first. Dep. of Phyllis Jernigan [DE-219-6] at 29. As he approached the black truck, he heard someone remark about who he was going to first. He made sure the driver of the truck was okay, and then started to walk toward a group of women, but then saw a McDonald's employee and instead approached her. Id. at 29-30. After speaking with the McDonald's employee, he then started to walk toward the group of women, when a man approached him in a very aggressive manner. Id. at 30-31. Officer Koehler told Sgt. Jernigan that he attempted to arrest the man, tried to kick the man's feet out from under him, and struggled with the man. According to what Officer Koehler told Sgt. Jernigan, both men ended up hitting Officer Koehler's

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vehicle and putting a dent in it. Id. at 31.

Sgt. Jernigan then initiated a use of force investigation. When she spoke with Mr. Johnson, he asked her what he was being charged with. Dep. of Darwin Johnson [DE-219-7] at 97-98. Sgt. Jernigan did not answer his question, but asked whether he needed an ambulance. Id. She also took photographs of Mr. Johnson at the scene. Dep. of Phyllis Jernigan [DE-219-6] at 38. Sgt. Jernigan took the verbal statements of Mrs. Johnson, Mrs. Mathis, Mrs. Shelton, Ms. St. John and Elizabeth Johnson. Id. at 64-66. Mrs. Johnson gave a written statement to Sgt. Jernigan on the scene, but Mrs. Mathis and Mrs. Shelton wanted additional time to write their statements. Dep. of LaTonja Johnson [DE-219-5] at 171. Sgt. Jernigan told Mrs. Johnson that Officer Koehler had been responding to a disturbance call that a group of angry black people had surrounded a person in a vehicle. Id. at 144-45.

Officer Koehler transported Mr. Johnson to the police station. Dep. of Darwin Johnson [DE-219-7] at 98. Mr. Johnson testified that he had a conversation with Officer Koehler:

I asked him why he was doing this. I asked him did he take pleasure in doing the things that he does, that he was doing. He didn't say anything, but he did tell me that he used to be in the Army. I think he said he was a sergeant, if I'm not mistaken, told me he got out of the Army. He told me he had PTSD. And I didn't ask him whether that was the reason why he got out of the Army, but, you know, he said he got out of the Army, and then we continued small talk, as far as the Army. He told me which type of unit he was in, but I don't remember, because I remember telling him that I was in the signal [corps], that I had been in artillery most of my time.
And he stopped talking after I asked him again why was he doing this, did he take pleasure in doing what he's doing and what did I do, and he just stopped talking to me.

Id. at 98-99. Mr. Johnson observed Officer Koehler filling out a report of the arrest on his computer in the front of the patrol car, and saw that Officer Koehler had listed " Officer Lewis" as a witness. Mr. Johnson asked Officer Koehler who Officer Lewis was, and Koehler then removed that from the report. Id. at 99-100. Ultimately, Officer Koehler did not list any witnesses in his report of the arrest of Mr. Johnson. Dep. of Shane Koehler [DE-219-1] at 171-73.

Mr. Johnson was charged with Assault on a Government Official (" AOGO" ). Magistrate Judge Nicholas Sisk found that there was a probable cause to arrest Mr. Johnson:

I, the undersigned, find that the defendant named above has been arrested without a warrant and the defendant's detention is justified because there is probable cause to believe that on or about the date of offense shown and in the county named above the defendant named above unlawfully and willfully did assault OFFICER S. KOEHLER 262, a government officer of the FAYETTEVILLE POLICE DEPARTMENT by PRESENTING AN UNEQUIVOCAL APPEARANCE OF AN ATTEMPT OR THREAT, BY PHYSICAL FORCE AND VIOLENCE, TO IMMEDIATELY PHYSICALLY INJURE OFFICER KOEHLER, IN THAT HE WAS IN EXTREMELY CLOSE PROXIMITY TO THE OFFICER USING A HARSH TONE OF VOICE AND PRESENTING OTHER BODY LANGUAGE TO DEMONSTRATE AN IMMINENT

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ACT OF AGGRESSION. At the time of the offense the officer was discharging the following duty of that office INVESTIGATING AND CONTROLLING A SCENE OF A MOTOR VEHICLE ACCIDENT.

April 17, 2011, Magistrate Order [DE-243-10]. Mr. Johnson contends that the Magistrate did not originally issue the order, and did so only after Officer Koehler altered his original statement to say that Mr. Johnson put his hands on Koehler. Dep. of Darwin Johnson [DE-219-7] at 282-84. Officer Koehler testified that he did, in fact, go in front of the magistrate twice, but it was because he attempted to charge Mr. Johnson with both AOGO and damage to government property, and the magistrate judge found there was no probable cause as to the damage charge. Dep. of Shane Koehler [DE-219-1] at 252-54. Officer Koehler testified that he had to redo the form to apply for probable cause to reflect only the AOGO charge. Id. at 255. Officer Koehler also testified that he told the magistrate that Mr. Johnson had put his hands on him. Id. at 252. Mr. Johnson was released that afternoon on an unsecured $500.00 bond.

The next day, Mrs. Johnson and Mrs. Mathis, along with Mrs. Shelton, turned in their written statements to the FCPD. Dep. of LaTonja Johnson [DE-219-5] at 16. Sgt. Jernigan continued to be in charge of the investigation of Officer Koehler's alleged use of excessive force.

B. Investigation into Officer Koehler's Use of Force

As part of her investigation, Sgt. Jernigan completed an Investigative Contact Checklist, which reflected that Officer Koehler, Mrs. Mathis, Mrs. Shelton and Mr. Johnson gave her verbal statements on April 17, 2011. See Investigative Contact Checklist [DE-244-5]. The Checklist also reflected that Mrs. Johnson and Ms. St. John gave Sgt. Jernigan verbal and written statements on the same date. Id. Sgt. Jernigan listed Elizabeth Johnson as the " McDonald's Manager" and stated " no video did not witness anything." Id. The Checklist also reflects that Sgt. Jernigan sought video from a Lowe's store near the McDonald's, but the store did not have any. Id.

Sgt. Jernigan submitted an 11-page report on her investigation into Officer Koehler's use of force on April 23, 2011. See 4/23/11 Memo [DE-323-13]. The report detailed each of the witnesses' statements to Sgt. Jernigan. Notably, Sgt. Jernigan reported that Mrs. Johnson, Mrs. Mathis, and Mrs. Shelton all stated that Darwin Johnson stepped between Mrs. Johnson and Officer Koehler in order to protect his wife. Id. at 5-6, 9-10. Sgt. Jernigan reported that Mr. Johnson, however, stated that no one was near Officer Koehler or him when the altercation occurred. Id. at 10. Sgt. Jernigan also reported that Elizabeth Johnson said she did not see the accident or the altercation between Officer Koehler and Mr. Johnson. Id. at 11. She concluded the report with the following:

After reviewing all the fact [sic] I have gathered, it is my opinion that Officer Koehler did not violate any Departmental Rules and Regulations, General Orders or Operating Procedures. The fact that Mr. Darwin Johnson's verbal statement to me contradicts his family's statement which leads me to believe Officer Koehler used the minimal amount of force (Hands On) necessary to affect the arrest.
I reviewed Officer Koehler's personnel file on April 27, 2011. Officer Koehler does not have any disciplinary action against him dealing with Use of Force. I recommend that Officer Koehler be

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exonerated and this case be considered closed.

Id. at 11-12. Sgt. Jernigan submitted the report and entire file to Lt. Oates, who also concluded that Officer Koehler should be exonerated. Lt. Oates then forwarded the file to Captain Anthony Kelly. After reviewing the entire file, Captain Kelly issued a memorandum on May 2, 2011 [DE-244-7], recommending that Officer Koehler be exonerated for the use of force but receive a Corrective Action for Unsatisfactory Performance for failing to obtain a potential witness's information.

Subsequently, however, Captain Kelly sent a note to Lt. Croyle, one of Sgt. Jernigan's superior officers, stating the FCPD's Office of Professional Standards received a written statement from the McDonald's manager, and the statement " does not look upon Officer Koehler favorably." Kelly-Croyle Note [DE-220-1]. The note continues:

My question is why Sgt. Jernigan or Officer Koehler couldn't find this person. I need you to be [the] filter between the Sgt. and myself. Now, I need you to revisit this file and question the manager who wrote the statement to get their side. Their statement is consistent with the complaints [sic] statement. I need you to complete a memo for the file and make any changes to your finding if any.
I have my concerns with Officer Koehler; his name comes across my desk quite a bit. I really need you to take a good look at this situation to make sure he didn't violate policy. Also, there should be an alert coming down to your Sgts; make sure someone takes a good look at his [Internal Affairs] track to make real sure he doesn't have a problem that we are missing.

Id. The written statement from the McDonald's manager, Elizabeth Johnson, included the following:

One of my employees . . . came and told me that two customers were arguing cause they had got in an accident. I went outside to see what was going on the lady in the SUV was on the phone with the police and thought at first the other lady, in the big truck, drove off, but then another customer told us she continued to go and get her food. When she was finished getting her food she parked in the rear of the store. By that time I was already speaking with the lady in the SUV and then her husband pulled up. They [sic] lady in the SUV did tell the lady in the truck she better not get out of her vehicle. I stayed out there calming the situation. Then the lady in the truck said she knows the Fayetteville PD a few times. So then the lady in the SUV lady was like so and then the lady in the truck kept saying, " I am not talking to you." We continued to wait for the police the lady's [sic] from the SUV went over the side parking spaces and were talking. I was standing near the DT [drive-thru] speaker talking to the SUV lady's husband. Everyone was fine and calm by this time. Then the officer came up, he parked next to the lady in the truck and said is that our [sic] truck in the DT to the lady in the SUV you need to move it. He did not look at the way it was positioned nothing. Then he went to the lady in the truck and the SUV lady was like ok so you are going to her first. I understood why they felt that day cause the lady in the truck already said that she knew the police. Then the officer came over screaming and got toe to toe with the lady in the SUV's husband. I did not see the husband put his hands on the officer. I was walking over there to say something to cause by then the situation was already out of hand and the officer could have diffused it by just

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claming [sic] everyone and not getting in their face. Then the officer started to try and drop the husband to the ground. A man came from the side and said don't resist (built Hispanic looking man) and the husband put his hands up and said I am not resisting. Then the officer lunged him in to the car and at that time the man's mother was right there. She was trying to say no office stop and as she got closer he pushed her. Then he put him in the car. By then the SUV lady was already calling the police again because of the way he was acting and he radioed to cancel the call. After this I went to see what my employee saw and he was telling me that they were fussing over what happened then the lady in the truck ran up over the curve and on the grass to get around and get her food.

4/20/2011 Elizabeth Johnson Statement [DE-243-7].

Lt. Croyle attempted to contact Elizabeth Johnson several times, but it took approximately two to three weeks to actually make contact with her. Dep. of Kevin Croyle [DE-246-2] at 15. Lt. Croyle met with Elizabeth Johnson at McDonald's on May 21, 2011. Id. at 16. He subsequently issued a memorandum that stated in part the following:

On 5-7-2011 I was tasked to follow-up on this investigation due to a statement received from Elizabeth Johnson, the General Manager of McDonalds. The statement was written prior to her having a follow-up conversation with Sgt. Jernigan, and she said her perception has changed since ...

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