In McNeal v. City of Blue Ash, Ohio et al, 2024 WL 4262532 (6th Cir. Sept. 23, 2024), the court, inter alia, reversed the lower court award of summary judgment to defendant on plaintiff’s age-based hostile work environment claim asserted under the Age Discrimination in Employment Act (ADEA).
From the decision:
Because the facts here present a close call regarding severity, we decline to do the jury’s job for it: McNeal cites enough evidence for a reasonable juror to conclude he was subjected to a hostile work environment.
McNeal offers extensive testimony from officers demonstrating that he was surveilled and scrutinized for minor violations that other officers engaged in nearly every day. Ziegler testified that he “routinely” broke traffic laws and that an average officer in Blue Ash violated department policy “multiple times” each shift. R. 32, PID 1965–66, 1980. Zielinski testified that “everyone violated the speed limit laws” and that patrol officers widely disregarded traffic laws unless there was a complaint from the public. R. 39, 2557–58. And Stewart, a supervisor, testified that he had issued written discipline only a single time in the twelve months preceding his testimony. 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. One former sergeant testified that McNeal’s supervisors enjoyed disciplining him, describing an incident where the sergeant witnessed Noel “walking on his tippy-toes” and “giggling” before issuing McNeal a suspension for a minor policy violation. R.. 35, PID 2242.
McNeal further 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. See, e.g., Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006) (describing that assigning employees “extra and demeaning duties” could provide a factual basis for a hostile-work-environment claim). McNeal offers evidence that patrol officers lack the specialized training required to carry out a traffic study and that his assignment was unheard of for a patrol officer. Kelley, a thirty-year veteran in law enforcement, stated that he had never seen this task assigned to a police officer and believed it was “impossible for anyone other than a traffic engineer to complete.” R. 43, PID 2973. As part of the traffic study, McNeal’s supervisors placed him on increased monitoring, requiring him to provide weekly updates.
McNeal also produced evidence showing that the Department’s conduct significantly affected his wellbeing—he began suffering from anxiety, forcing him to seek out medical treatment and begin taking prescription anxiety medication for the first time. This evidence lends further credence to McNeal’s argument that the alleged harassment was severe or pervasive enough to alter the conditions of his employment. See Harris, 510 U.S. at 22 (“Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct.”).
Defendants argue that McNeal’s allegations, even if true, amount to trivial or irritating episodes and are not sufficiently severe or pervasive to alter the conditions of employment. However, viewing the evidence in the light most favorable to McNeal, we disagree. In a hostile-work-environment claim, it is improper to “carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode.” Jackson, 191 F.3d at 660 (quoting Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992)). Instead, the “totality of the circumstances” approach requires us to examine McNeal’s treatment cumulatively to see whether it created an atmosphere of hostility that was more than the sum of its parts. Id. McNeal can defeat summary judgment if the incidents and conduct he alleges, taken together, are pervasive enough to alter the conditions of his employment, even if each is only irritating in isolation. Id.
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. Many officers testified that they had freedom to carry out their regular job duties in the way they thought best. See, e.g., R. 51, PID 3342–43 (Stewart testifying that officers had some discretion in determining when an emergency existed that required a Code 3 response); R. 43, PID 2972 (Kelley affidavit explaining that “[i]t is policy and practice for Blue Ash officers to determine on a case by case basis whether the circumstances warrant a code three response.”). Ziegler testified that if the Department levied discipline for each minor policy infraction, accidental or deliberate, the city “wouldn’t have any police officers, to begin with.” R. 32, PID 1966. Thus, a jury could conclude that McNeal was denied the discretion granted to other officers, qualifying as a “ ‘disadvantageous’ change in an employment term or condition.” Muldrow, 601 U.S. at 354 (quoting Oncale, 523 U.S. at 80).
Based on the foregoing, the court concluded that “[w]hen considering the evidence in McNeal’s favor, a reasonable jury could conclude that the conditions of McNeal’s employment were altered” and that “[b]ecause McNeal has demonstrated a genuine dispute of material fact as to the existence of an age-based hostile work environment,” reversal of the district court’s grant of summary judgment was warranted.