Can A Pattern Of Discipline Against An Older Worker Create A Hostile Working Environment?

Through their decades of experience handling age discrimination cases, our age discrimination lawyers in Citrus County, Florida know that older employees are often treated differently and less favorably from younger employees. One area where older workers are routinely treated worse than younger employees is disciplinary action. In far too many cases, older employees face disproportionate discipline from younger employees. For example, older workers are subjected to disciplinary action regarding behavior for which younger employees are not disciplined. Likewise, older employees are subjected to more severe disciplinary action than younger employees who engage in the same or similar behavior. In more extreme cases, older workers are subjected to a pattern of disciplinary action for minor rule or policy violations not enforced against younger employees.

In this article, our age discrimination lawyers in Marion County, Florida explain how the recent decision in McNeal v. City of Blue Ash, Ohio, 2024 WL 4262532 (6th Cir. Sept. 23, 2024) illustrates that subjecting older workers to a pattern of disproportionate discipline can create an age-based hostile working environment.

Age Discrimination Lawsuit

In that case, a man named McNeal brought an employment discrimination lawsuit against his former employer, the City of Blue Ash, Ohio (“Blue Ash”), pursuant to Age Discrimination in Employment Act (“ADEA”). The ADEA protects employees from discrimination on the basis of age. Under well-established law, age harassment is a form of age discrimination prohibited by the ADEA. To violate the ADEA, age harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. McNeal claims that he was harassed because of his age in violation of the ADEA.

McNeal was employed by the Blue Ash Police Department (the “Department”) as a police officer. In November 2018, Blue Ash terminated McNeal’s employment. At the time of his dismissal, McNeal was sixty-one years old—the oldest officer in the Department.

McNeal claims that his issues with the Department started in 2016 when he challenged his performance evaluation from the previous year. Shortly after, McNeal’s supervisors assigned him to conduct a traffic study at a local intersection, requiring him to provide weekly updates on his progress. Traffic studies were usually assigned to Blue Ash’s traffic-safety department, rather than to patrol officers, and McNeal claims that no other police officer employed by the department was assigned a similar task while he was there. McNeal believes that the assignment was punishment for disputing his evaluation scores, but also cites it as evidence of age discrimination.

Then, from April 2016 to July 2017, two Sergeants, Noel and Gerhardt, disciplined McNeal six times for violations of the Department’s policies. To start, Blue Ash required counseling for McNeal in April 2016 because he failed to turn on his microphone during a traffic stop. Then, McNeal received an oral reprimand in December 2016 for failing to turn in training certificates on time. That same month, Blue Ash reprimanded McNeal in writing for failing to follow a supervisor’s command to update two police reports. In January 2017, the Department issued McNeal a one-day suspension for failing to respond to a noise complaint in a timely manner. In June 2017, the Department suspended McNeal for three days because he failed to file the correct form after returning to work from a six-week medical leave. Finally, Blue Ash suspended McNeal for four days in July 2017 for failing to follow up an assigned police report despite receiving numerous reminder emails over a three-month period.

Employee “Paper-Trailed”

In December 2017, Noel was promoted to police chief and, a few months later, Noel had a meeting with McNeal to discuss his performance. McNeal told Noel that he believed he was being “paper trailed”—that his supervisors were creating a disciplinary record based on minor infractions that make it easier to fire him in the future. McNeal also told Noel that he did not appreciate receiving formal discipline instead of verbal warnings and requested that Noel not “rubber-stamp” discipline against him in the future.

In 2018, Blue Ash conducted an investigation into an episode where the Department dispatched McNeal to a local restaurant in response to a 911 call involving a “non-breather.” The investigation uncovered multiple policy violations—both on the day of the incident and in the preceding months. The report concluded that McNeal was “inexcusably delayed” in his response to the “non-breather,” which required an emergency response, and that McNeal had violated a number of Department policies, some over 100 times.

After outlining McNeal’s new infractions together with his prior disciplinary history, the report recommended that McNeal’s employment be terminated. The Department offered McNeal the opportunity to retire voluntarily or attend a pre-disciplinary hearing, but McNeal declined both alternatives. Ultimately, Blue Nash terminated McNeal’s employment.

The trial court dismissed McNeal’s age harassment claim. The trial court reasoned that McNeal had not shown that the purported pattern of discipline for minor policy violations was sufficiently severe or pervasive to create an age-based hostile working environment.

Evidence Of Hostile Work Environment

On appeal, the U.S. Sixth Circuit Court of Appeals reversed the trial court’s dismissal and reinstated McNeal’s age harassment claim. Unlike the reversed trial court, the appellate court found that McNeal had presented “enough evidence for a reasonable juror to conclude that he was subjected to a hostile work environment.”

In support of its decision, the Sixth Circuit observed that McNeal “offers extensive testimony from officers demonstrating that he was surveilled and scrutinized for minor violations that other officers engaged in nearly every day.” The court of appeals noted that “more than a half-dozen officers testified or filed declarations stating that they believed McNeal was singled out for discipline, with some saying they had never seen another officer targeted so heavily.” The appellate court also pointed out that McNeal “alleges that the Department intended to humiliate him by assigning him to a traffic study that it knew he would not be able to successfully complete.” Finally, the court of appeals explained that “McNeal also produced evidence showing that the Department’s conduct significantly affected his wellbeing—he began suffering from anxiety, forcing him to seek medical treatment and began taking prescription anxiety medication for the first time.” “This evidence,” the Sixth Circuit concluded, “lends further credence to McNeal’s argument that the alleged harassment was severe or pervasive enough to alter the conditions of his employment.”

Marion County Age Discrimination Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our age discrimination lawyers in Marion County, Florida have fought for the rights of age discrimination victims for more than twenty years. If you have experienced age discrimination in the workplace or have questions about your rights as an age discrimination victim, please contact our office for a free consultation with our age discrimination lawyers in Marion County, Florida. Our employee rights law firm takes age discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.