Age Harassment Claim of Worse Assignment and Higher Scrutiny Proceeds

Takeaway: Even when an employee cannot establish age discrimination—for example, when the employee has been properly disciplined for poor performance—they may nevertheless show age-related harassment based on underlying circumstances suggesting that the employer targeted them based on their age.

The 6th U.S. Circuit Court of Appeals allowed an age harassment claim to proceed, emphasizing that extensive scrutiny and demeaning assignments could substantiate a hostile work environment claim despite the absence of clear age discrimination.

The plaintiff was a police officer with the City of Blue Ash, Ohio, with 33 years of experience in law enforcement, the last 17 of which were with the Blue Ash Police Department. He was 61 years old and the oldest officer in the department.

The plaintiff’s issues with the department started in 2016 when he challenged the previous year’s performance evaluation. Shortly after, his supervisors assigned him to conduct a traffic study at a local intersection, requiring him to provide weekly progress updates. Traffic studies were usually assigned to the traffic safety department, rather than to patrol officers, and the plaintiff claimed that he did not see any other police officer assigned to a similar task.

The plaintiff believed that the assignment was punishment for disputing his evaluation scores, evidence of age discrimination, and something intended to frustrate and embarrass him. From April 2016 to July 2017, the police chief and a sergeant disciplined the plaintiff six times for violations of the department’s policies. These disciplinary actions included a reprimand for failing to update two police reports, a one-day suspension for failing to timely respond to a noise complaint, a three-day suspension for failing to file the correct form after returning to work from medical leave, and a four-day suspension for failing to follow up on an assigned police report.

In June 2018, the department dispatched the plaintiff to a local restaurant in response to a 911 call. The call was initially described as a potential overdose but was later changed to a nonbreather suffering from a heart condition. The plaintiff knew that CPR was being administered and that an ambulance was on the way. By department policy, he had to respond because an ambulance was dispatched.

The plaintiff took one minute and 54 seconds to exit the station and reach his vehicle, then he sat in his vehicle for 52 seconds before leaving the station. He testified that it took him a few minutes to read the details of the dispatch and to wait for the police chief to pull his car out first. The restaurant was 1.4 miles away, and the plaintiff did not use his lights or siren. In cases of emergency, officers must respond with their lights and siren activated—which is called a Code 3 response—but can decide not to respond Code 3 if they immediately notify dispatch and follow all traffic laws.

The plaintiff arrived at the restaurant five minutes and 21 seconds after the initial dispatch. Unfortunately, the individual with a heart condition passed away. The plaintiff’s slow response made no difference in the situation, but the police chief authorized an investigation into the incident based on concerns that the plaintiff had taken excessive time in the past and that the response time could be the difference between life and death in the future.

The investigation into the episode uncovered multiple policy violations, both on the day of the incident and in the preceding months. The report concluded that the plaintiff was inexcusably delayed in his response to the nonbreather, violated departmental policy by failing to notify dispatch that he would not respond Code 3, exceeded the speed limit without invoking Code 3, violated the department’s policy requiring officers to use a microphone to record each traffic stop, and failed to verify that his in-car camera was functioning properly.

The department offered the plaintiff the opportunity to retire voluntarily, but he declined and was fired. He sued the City of Blue Ash, its city manager, and the police chief, alleging retaliation, racial discrimination, and age discrimination. The defendants moved for summary judgment. The plaintiff only opposed summary judgment as to his age discrimination claims, which was nonetheless granted. The plaintiff appealed.

On appeal, the 6th Circuit considered the plaintiff’s age harassment claim based on his allegation that he was made to endure two years of severe and humiliating discipline and scrutiny as well as assignment to the demeaning task of a traffic study. The court found that the assignment was sufficiently averse to support a harassment claim and, with the evidence of higher scrutiny, was enough for his claim to proceed.

The court thus affirmed summary judgment as to the plaintiff’s discriminatory discharge claim and reversed summary judgment on his hostile work environment claim.

McNeal v. City of Blue Ash, 6th Cir., No. 23-3180 (Sept. 23, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.