FHKAD attorney David Riepenhoff secured summary judgment for an Ohio Township in a recent age discrimination and retaliation lawsuit. Valley v. Genoa Twp., 2:14-cv-2641 (S.D. Ohio Feb. 7, 2017).

Christopher Valley began working for Genoa Township as a part-time firefighter in 2007. In 2012, the fire department sought to hire two additional full-time firefighters. Mr. Valley was one of 32 applicants for the position. The applicants took a written test and a physical agility test. Candidates who performed satisfactorily, including Mr. Valley, were then interviewed by a panel that included the Assistant Chief and three Captains, took a psychological test, took a physical examination, and underwent background checks.

The Fire Chief then ranked the candidates based on their average score from the panel members in the interview, placed them on a spreadsheet, and next to each name included his or her score on the written test as well. The rankings and test scores were then used to select who the Fire Chief would recommend for hire.

Mr. Valley ranked seventh based on the panel interview scores and had a written score of 79. The highest ranked candidate was removed because of a score of 72 on the written test and background check. The second and third ranking candidates were then offered the positions, with the fourth ranking candidate given an offer after the second candidate declined the offer. Each of those candidates scored higher on both the panel interview and written test. Each was also younger than Valley.

On December 17 or 18, 2012, the Fire Chief advised Valley he would not be hired. The Chief explained to Valley that he did not rank high enough on the written test and panel interview. The Chief also referred to concerns that felony charges appeared on his background check and referred to the results of a psychological test. On December 26, 2012, Valley met with the Township Administrator about his concerns. He alleged the Fire Chief’s explanations were not legitimate and did not make any sense.

During this time, another employee informed the Fire Chief that Valley may have been the subject of a sexual harassment investigation while working for another employer. The Fire Chief told the Administrator, who on December 27, 2012 initiated an internal investigation and told Valley not to report for work until further notice. On June 6, 2013, the Board of Township Trustees held a pre-disciplinary hearing. On June 19, 2013, the Board terminated Valley’s employment.

On November 20, 2013, Valley filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and Ohio Civil Rights Commission (“OCRC”) alleging age discrimination and retaliation. The EEOC declined to pursue the matter further and Valley filed suit in federal court. Valley alleged he was not given the job due to age discrimination and was unlawfully retaliated against by being suspended and then terminated for complaining about it.

The Court first found Valley’s age discrimination claim and portions of his retaliation claim untimely because he did not file his EEOC/OCRC charge within 300 days of the alleged adverse actions.

The Court also found Valley could not prevail on the merits. The Court found Valley presented insufficient evidence of age discrimination because the Township produced unrebutted evidence that Valley scored lower than the other candidates.

The Township established that the Fire Chief selected the full-time positions based on an objective, careful process, and submitted underlying data to support the rankings.

Valley alleged a younger Captain who scored him lower in the interview had a discriminatory bias against Valley because of his age. However, the Court found the Captain’s explanations sufficient that he scored Valley lower because Valley “did not have the wow factor” that several other candidates had in their interviews, and that others “did a better job selling” themselves than Valley. Further, the data showed that the Captain generally scored all candidates lower than his counterparts did during the interviews. While under the “cat’s paw” theory, an employer can be liable for the discriminatory acts of its supervisors, the Court found no evidence that the younger Captain was motivated by age discrimination to score Valley lower.

The Court rejected Valley’s retaliation argument because he never complained to the Township that age was a factor in the employment decisions. The Court similarly held that Valley could not prevail on a First Amendment claim because he did not engage in protected free speech. Instead, the Court construed his complaints to the Fire Chief and Administrator as merely the internal airing of a personal grievance about not getting the full-time job, and not a matter of public concern.

Feel free to contact attorney David Riepenhoff at driepenhoff@fishelhass.com or (614) 221-1216 with any questions.