A trial court wrongly tossed an Ohio police officer’s suit claiming he was sidelined for complaining about age bias, the U.S. Equal Employment Opportunity Commission said, telling the Sixth Circuit that forcing him to undergo a fitness assessment could qualify as unlawful retaliation.
In an amicus brief filed Wednesday, the EEOC said an Ohio district court was wrong to toss Jeff Smith’s Age Discrimination in Employment Act suit against the city of Union because forcing Smith to undergo a fitness-for-duty exam and then slow-walking his reinstatement qualified as an adverse employment action. The agency said the U.S. Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White that an employer’s conduct constitutes retaliation if it could discourage a worker from reporting bias.
“A reasonable jury could readily conclude that, in the circumstances Smith faced, requiring a fitness-for-duty exam was materially adverse,” the EEOC wrote. “In ordering the exam, the city made clear that Smith’s career was in jeopardy, informing him that he would ‘not be permitted to return to work at this time’ if he failed the exam.”
According to Smith’s April 2022 suit, the city accused him of violating several Police Department policies during events on May 30 and May 31, 2020, such as failing to wear his seat belt, participating in an unjustified pursuit and improperly handling evidence, among other transgressions. Smith said that even though younger officers weren’t disciplined for similar conduct, he was fired in August 2020, at 51 years old.
After his union filed a grievance, an arbitrator determined that Smith should be reinstated and his termination should be converted to a three-day suspension. However, Smith said the Police Department forced him to undergo a fitness-for-duty examination so his return would be delayed and he would miss a promotion opportunity, in what he said was retaliation for filing discrimination charges with the EEOC and Ohio Civil Rights Commission.
U.S. District Judge Michael J. Newman granted summary judgment to the city in May, saying the Police Department was justified in requiring that Smith be evaluated because he’d admitted that stress caused his prior mistakes and he hadn’t been a police officer in nearly a year when he was reinstated. The court also found that Smith hadn’t identified a younger employee who was excused from a fitness-for-duty exam under similar circumstances, and a reasonable jury couldn’t conclude that the assessment was a materially adverse action.
But the EEOC argued Wednesday, that even if the Police Department had legitimate reasons for ordering the fitness exam, that’s irrelevant in a consideration whether it might have dissuaded someone from complaining about discrimination.
According to the amicus brief, even after Smith completed the assessment, the city inexplicably prolonged his leave, preventing Smith from being considered for promotions that were instead given to younger officers and causing him to miss out on a raise when the city finalized a three-year collective bargaining agreement.
The agency also asserted that the district court erred in stating that the relevant retaliation standard was whether an action “would dissuade” a reasonable worker when Burlington Northern actually asks whether the conduct “could” or “might” discourage someone from speaking out against bias.
“By using ‘could’ rather than ‘would’ in defining materially adverse actions, the Supreme Court meant to capture actions that have even the potential to dissuade a reasonable worker, not only those actions that are likely or certain to do so,” the EEOC wrote. “This court should take this opportunity to clarify that ‘could’ or ‘might,’ rather than ‘would,’ is the correct standard.”
Matthew Stokely, who is representing Smith, told Law360 that the EEOC “masterfully articulates the legal issues involved in litigating unlawful retaliation claims involving employers requiring fitness-for-duty exams after the employee has engaged in protected activity.”
“The brief contains a deep analysis of federal case law and demonstrates the issues of fact that come into play in evaluating summary judgment motions,” Stokely said.
Representatives of the EEOC and Union did not immediately respond to requests for comment Thursday.
Article Written By: Patrick Hoff
Representation
The EEOC is represented in-house by Steven Winkelman.
Smith is represented by Matthew D. Stokely of Pickrel Schaeffer & Ebeling Co. LPA.
The police department is represented by Beverly A. Meyer, Arthur P. Schoulties and Benjamin J. Reeb of Bricker Graydon LLP.
