Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—6th Cir.: Officer, fired for police department policy violations, revives age discrimination claims, (Jul 21, 2025)

By Jason Albright, J.D.

The police chief had said he had “watched videos of younger officers that didn’t make the mistakes that [the plaintiff] made.”

The eldest and longest-tenured police officer for the City of Union, Ohio, fired for two department policy violations and ultimately belatedly reinstated after an arbitrator found the city lacked just cause for the firing, has revived his age discrimination claims on appeal to the Sixth Circuit. The arbitrator’s decision was evidence that the city’s real reason for firing him was not his alleged performance violations and that the city’s response to these incidents was unreasonable, and a remark the police chief made to the officer about the relative performance of “younger officers” further supported his showing of pretext. The officer’s retaliation claim—that the city made him take a fitness-for-duty exam and delayed his return to work as punishment for filing an EEOC charge—also survived summary judgment (Smith v. City of Union, Ohio, No. 24-3498 (6th Cir. July 18, 2025)).

Longest-tenured officer. The plaintiff, according to the court, was the City of Union’s eldest and longest-tenured police officer. Originally hired in 2003, he was 51 years old during the relevant time period.

Labor contract and just cause. A labor contract between the city and the police union governed his employment, and the contract allowed the city to discipline employees only for “just cause.” In addition, its progressive discipline policy required the city to consider “the nature of the violation, the employee’s prior history of discipline[,] and the employee’s record of performance and conduct” before punishing the employee.

Prior discipline. Before the events that led to the lawsuit, the officer had received formal discipline three times in his 17-year tenure. The city had reprimanded him twice—in 2013 and 2017—and suspended him once—in 2014—for five days. He had also received multiple “employee performance improvement plans,” which the city treated as informal feedback rather than formal discipline.

Performance incidents. On May 30, 2020, the city dispatched the officer to investigate a suspicious vehicle parked near a church. A junior coworker heard the dispatch call and headed to the church to provide backup. As the plaintiff got to the church and approached the car, it sped away, cutting through grass, turning onto a road, and driving dangerously. Without putting his seatbelt on, the plaintiff followed in hot pursuit, and the coworker tailed behind. Both forgot to activate their cameras, and the high-speed chase ended abruptly when the fleeing vehicle crashed.

“[H]oney” and “sweetheart.” The driver exited her car and collapsed, and as she did, the coworker reached the scene. The plaintiff called dispatch to request a medic, and at first, he did not provide his precise location. Nor did he search the driver for weapons. Although he checked her vital signs, he did not render first aid. Neither did the coworker. As the officer waited with the driver for medics to come, he also called her “honey” and “sweetheart.”

Seized drugs. After the medics arrived, the officer inspected the crashed car, and inside, he seized a bag of drugs and a scale. Then he handled other items, including his own mobile phone, without changing gloves. The coworker, who also searched the car, did not replace his gloves properly either. Later in the day, the officer returned to the church to take photos, and, despite photographing a glove on the ground near where the vehicle had been parked, he failed to collect it as evidence.

Failed to collect crucial evidence again. The next day, dispatch sent the officer and another officer (not the junior coworker) to a house near the same church to investigate a reported burglary. The officer was responsible for “process[ing] the scene for any and all evidence.” And yet again, according to the city, he failed to collect crucial evidence at the scene.

Disciplinary proceedings. While reviewing the officer’s incident report from these two days, the department’s captain grew concerned that the officer had violated “numerous polic[ies],” and the chief ordered him to investigate the officer’s conduct. After analyzing the incidents and the officer, the captain determined the officer had violated eight department policies, including ones on initiating pursuits, wearing a seatbelt, rendering first aid, interacting with civilians, and handling evidence. The captain recommended suspending him, and the city placed him on paid administrative leave while it decided how to proceed.

Coworker’s treatment. The chief, meanwhile, instructed the captain not to investigate the junior coworker. And though the captain recommended issuing him a reprimand, the city did not discipline him or even issue him informal feedback.

Hearing and chief’s statement about younger officers. The city then held a hearing to give the officer “an opportunity to respond” to the investigative findings and “tell his side of the story.” At the hearing, the chief told the officer he had “watched videos of younger officers that didn’t make the mistakes that [the officer] made.”

Less than a month later, on the chief’s recommendation, the city terminated him.

Arbitration. The officer filed a grievance challenging the city’s decision to fire him under the terms of the contract, and an arbitrator ordered the city to reinstate him, reduce his punishment to a three-day suspension, and provide back pay. The arbitrator based the decision on findings that the officer’s misconduct was much less severe than the city had claimed, and that the city had overreacted and ignored the labor contract’s progressive discipline policy by firing him.

Fitness-for-duty exam. About a month after the arbitrator’s award, however, the city ordered the officer to attend a fitness-for-duty exam before returning to work. The city explained that he had told the captain during the investigation that he had been “stressed” during the May 2020 incidents, which led to his errors on the job. Additionally, the city explained that it was requiring the examination because the officer had not performed any police work since the city placed him on leave a year earlier.

Reinstatement further delayed. The city scheduled the officer’s exam for July 16, 2021, and he passed, so the doctor informed the city on July 24 that the officer was fit for duty. The city, however, did not schedule the officer to return to work until August 16. According to the officer, the city delayed his return by asking the doctor, who had already cleared him, to review footage from the incidents. Thereafter, according to the officer, the doctor stood by his assessment even after reviewing the videos.

Junior coworker promoted, officer denied departmentwide raise. In the time between the arbitrator’s decision on June 8 and when the city allowed the officer to return on August 16, the city promoted the junior coworker to lieutenant and hired another lieutenant externally. And just three days before it allowed the officer to return to work—and three weeks after the doctor had cleared him—the city negotiated a new labor contract that provided every police officer a raise, with the exception of the officer.

Lawsuit and decision below. After returning to work, the officer sued, claiming the city violated the ADEA and its Ohio analog by firing him based on his age and then retaliating against him for filing an EEOC charge. The district court granted summary judgment to the city on all counts, and the officer timely appealed to the Sixth Circuit.

Age discrimination. Reversing, the appeals court found that the district court erred in its pretext analysis as to the age discrimination claims. “At bottom,” the Sixth Circuit observed, “the arbitrator’s decision is evidence that [the officer’s] conduct in May 2020 could not reasonably have warranted his termination.” The arbitrator’s decision was evidence that the city’s real reason for firing him was not his alleged performance violations and that the city’s response to these incidents was unreasonable.

Second, the appeals court found, the chief’s remark about “younger officers” also supported the officer’s showing of pretext. Although the officer adduced only one age-related statement by the chief, his remark that he had seen “younger officers that didn’t make the mistakes that [the officer] made” came during the officer’s disciplinary hearing and less than a month before the chief recommended terminating him, and the city did not dispute that the chief was a decisionmaker.

Retaliation. The officer also revived his retaliation claim. Although the city presented two reasons for ordering the officer to undergo a fitness-for-duty exam—the officer had stated during his interview with the captain that stress caused his mistakes in May 2020 and the officer had not performed police work in the year since the city placed him on leave—the city presented no legitimate reason for waiting to schedule the officer’s exam until a month after the arbitrator ordered his reinstatement. Nor did the city present a legitimate reason for delaying the officer’s return by over three weeks once he passed the exam.

The case is No. 24-3498.

Judge: Bloomekatz, R.

Attorneys: Matthew D. Stokely (Pickrel, Schaeffer and Ebeling) for Jeff Smith. Beverly Ann Meyer (Bricker & Eckler) for City of Union.

Companies: City of Union, Ohio

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