Yesterday, the Sixth Circuit affirmed the summary judgment dismissal of an age discrimination claim, but reversed dismissal of the companion hostile work environment claim brought by a former police officer. McNeal v. City of Blue Ash, No. 23-3180 (6th Cir. 9/23/2024). The Court agreed that the plaintiff officer could not show that his termination – or the underlying disciplinary actions – were discriminatory or pretextual. However, he could possibly show a hostile work environment based on the cumulative effect of closer scrutiny and supervision than his younger co-workers received, a denigrating assignment that could be designed for him to fail and his supervisor’s “glee” in imposing disciplinary actions against him. The Court’s opinion suggests that hostile work environments need not be severe or subjectively hostile when discriminatory employment actions need not be significant in order to be actionable: “Because hostile-work- environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show “significant” harm applies to both types of claims. . . Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.”
According to the Court’s opinion, the plaintiff worked for
33 years as a police officer and was the oldest officer in the department. After his supervisor was promoted to his
role, the plaintiff claimed that he was subjected to closer scrutiny. For instance, after he challenged his 2015
performance evaluation, he was assigned to conduct a traffic study which had
never been assigned to a patrol officer before and which he lacked
qualifications to conduct. He alleged
that it was both retaliatory for his performance evaluation challenge and based
on his age. He then received
progressive disciplinary actions over the next two years for infractions, such
in April 2016 for failing to turn on his microphone during traffic stops (after
he had first been informally counselled when he had been identified as a
primary offender of that policy). In
June 2018, the plaintiff and another officer violated a number of policies when
responding to a medical emergency, including failing to use lights and sires, failing
to notify that they were not using lights and sirens, and speeding without
lights and sires, etc.
When the individual died from the medical emergency, an
investigation was conducted into the police response. The investigation revealed that the plaintiff
had previously violated the same policies.
When the investigators checked his prior traffic stops, they discovered
that he had not used his audio (which he had received formal disciplinary
action for in 2016). As they checked his
prior traffic stops, they discovered that he only turned on his audio in 8
stops that year (out of 38) and that he had never checked his video equipment
in his109 shifts so far that year as required by departmental policy. When he claimed that he generally turned on
his audio and checked his equipment, they concluded that he was being
intentionally dishonest, which by itself, is a terminable offense. He was given the option of retiring or
submitting to a pre-disciplinary hearing.
He rejected both offers and was terminated. His grievance was rejected in
arbitration. He then filed suit. The trial court granted the City and
individual defendants summary judgment on all claims.
The Court agreed that the plaintiff could not show that he
was terminated on account of age discrimination. The ADEA requires that age be the
determinative factor in his termination:
that he would not have been fired but for his age. In this case, assuming that he could show a
prima facie case of discrimination, he could not show that his employer lacked
a legitimate basis for his termination based on his misconduct and prior
disciplinary history. The plaintiff
conceded that he could not disprove the factual basis of any of his prior
disciplinary actions or his termination.
The Court rejected his argument that his termination was
pretextual because it did not actually motivate the decision to terminate his
employment:
Even if it is true that the
Department generally scrutinized the performance of older officers to a greater
degree than younger officers, [the plaintiff] has not presented sufficient
evidence that the reasons given for his termination—an extensive list of
disciplinary infractions that included untruthfulness—were not the true
reasons. [He] does not contest, for example, that the Department would be
required to disclose his untruthfulness to defendants at trial, rendering him
unable to perform an essential job duty. Nor does [he] dispute that the
Department was legitimately concerned that his pervasive failure to follow the
recording policies jeopardized the Department’s ability to gather evidence and
limit its exposure to liability. Because the ADEA requires plaintiffs to show
that age is the “but-for” cause of the disciplinary action—not simply a
motivating factor—[he] cannot proceed if his termination was at least partly
caused by Defendants’ non-discriminatory reasons. . . .
He does not meet this burden on the second prong.
The Court also rejected the argument that his conduct was
insufficient to warrant his termination, mostly because the other responding
officer was treated similarly to him and given the same option to voluntary
retire or submit to a pre-disciplinary hearing.
For that matter, the plaintiff did not address the dishonesty issue at
all in his briefs.
That being said, the standard for proving a hostile work
environment is much less than proving discrimination. However, “allegations of discrete
discriminatory acts otherwise actionable as independent disparate-treatment
claims do not by themselves constitute harassment supporting a
hostile-work-environment claim.” (italics added for emphasis). Thus, it was conceded that his suspensions
and termination could not be considered as evidence of a hostile work
environment. Rather, a
hostile-work-environment claim is “based on the cumulative effect of individual
acts,” many of which are not actionable on their own.”
an adverse employment action can
affect employment terms or conditions on two registers. By definition, an
adverse action can cause a change in the terms or conditions of employment. But
an adverse action deployed strategically as harassment can also add to a
climate of hostility that represents a different change in the terms or
conditions of the job. To use the Supreme Court’s words, a discrete
discriminatory act may have “occurred” on one day and thus be actionable, but
it also may be part of a separate harm that “occurs over a series of days or
perhaps years.” . . . . In the
hostile-work-environment context, we exclude adverse actions that operate only
on the first register, but consider the ones that operate on the second. (emphasis
added).
In this case, the plaintiff “cited testimony that older
officers were regularly subjected to greater scrutiny, and highlighted examples
showing that younger officers did not face discipline for their policy
violations.” He also
alleged that he was the only officer whose performance was investigated over an
entire year (when the investigators reviewed each of his traffic stops). “We focus on the harassing effect of these
incidents to assess whether the ongoing monitoring created a climate of
hostility in the aggregate (and combined with other actions), not whether each
incident alone changed [his] employment status. Therefore, [his] evidence of
higher and disproportionate scrutiny may be used to support his hostile-work-environment
claim.” In addition, a number of
officers provided evidence that he was disciplined for infractions that other
officers violated with impunity.
He also cited the traffic study that he had been assigned:
Thus, the evidence supporting a
hostile-work-environment claim is not the unfavorable assignment itself but the
fact that the Department allegedly engaged in conduct designed to (1)
frustrate, demean, and embarrass him in front of his coworkers; (2) justify
more disciplinary action against him when he inevitably fell short of the
unreasonable expectations; and (3) force him further under the microscope by
requiring him to report to two supervisors on his progress weekly. The
significance of the traffic study for hostile-work-environment purposes is that
the Department allegedly used the assignment strategically in a broader effort
to discredit [the plaintiff].
. . .
The
[Supreme] Court has held that a hostile-work-environment claim is “based on the
cumulative effect of individual acts” occurring over the span of weeks, months,
or years. . . . An individual act within a
hostile-work-environment claim “may not be actionable on its own,” . . . —but there is no requirement that the
act not be independently actionable. As the Court recently explained, a
hostile-work-environment claim “includes every act composing that claim,
whether those acts are independently actionable or not.” . . . Thus, “even if a claim of discrimination based
on a single discriminatory act is time barred, that same act could still be
used as part of the basis for a hostile-work-environment claim.” . . . That conclusion makes good sense.
Whether a given act contributes to a hostile work environment does not turn on
whether that act might support a separate claim.
To reconcile Ogbonna-McGruder with Morgan and Green, we read Ogbonna-McGruder to bar a plaintiff from including in a
hostile-work-environment claim only those discrete acts that result in a
separate discriminatory harm to the terms and conditions of employment that
does not “contribut[e]” to the alleged environment of harassment. (emphasis
added).
The plaintiff also claimed that most of his prior
disciplinary actions were part of this campaign of harassment against him:
even if some of these disciplinary
incidents were separately actionable, we would still consider whether the
incidents were also weaponized as tools of harassment in the “same actionable
hostile work environment practice.” . .
. Here, there is evidence indicating
that the Department imposed discipline as a vehicle to target and belittle [the
plaintiff]. Notably, [he] points to testimony that [the Chief] was “grinning
from ear to ear,” “smiling,” and “giggling” when discipline was meted out to [him].
. . . . [The Chief] reportedly asked
about [his] reaction to some discipline with excitement and enthusiasm, as
though “he [was] getting off, he [was] enjoying the fact that an employee of
his [was] being messed with.”
At any rate, these disciplinary
incidents would not be independently actionable. Only discipline causing “some
harm respecting an identifiable term or condition of employment” is actionable
on its own. . . . For example, this court previously held that
“[a] written reprimand, without evidence that it led to a materially adverse
consequence such as lowered pay, demotion, suspension, or the like, is not a
materially adverse employment action.” .
. . Here, [the plaintiff] was
disciplined in several ways that likely do not meet the definition of an
“adverse employment action,” . . . ,
including “documented counseling,” an “oral reprimand,” and a “written
reprimand.” . . . When considering the facts in the light most
favorable to [him], none of these incidents is actionable on its own in a
disparate-treatment claim.
The Court also lowered the evidentiary bar on proving
“severe” harassment:
Because hostile-work-environment
claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show
“significant” harm applies to both types of claims. . . . Instead, the employer’s discriminatory
action—or, as is the case here, the work environment—needs to produce “some
harm respecting an identifiable term or condition of employment.” . . . . Thus, when we consider whether a hostile-work
environment was severe or pervasive enough to violate Title VII, we effectively
ask whether it left an employee “worse off respecting employment terms or
conditions.” . . .
. . . [The plaintiff] is not required to show
that the harassment “seriously affect[ed] [his] psychological well being” or
caused him to “suffe[r] injury”—only that the environment “would reasonably be
perceived . . . as hostile or abusive.” . . . Importantly, [he] does not need to show that
“each incident of harassment standing alone is sufficient to sustain the cause
of action,” but that the incidents, taken together, make out such a case. . . . . Because the facts here present a close
call regarding severity, we decline to do the jury’s job for it: [he] cites
enough evidence for a reasonable juror to conclude he was subjected to a
hostile work environment.
. . . .
Here, a jury could reasonably
conclude that McNeal’s conditions of employment were altered. For example, if a
jury agrees that McNeal was uniquely targeted for minor policy violations and
subject to significant surveillance, he would have had a different level of
discretion than other officers.
(emphasis added)
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
