Gary McNeal v. City of Blue Ash, Ohio

                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 24a0222p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



                                                             ┐
 GARY MCNEAL,
                                                             │
                                   Plaintiff-Appellant,      │
                                                             │
        v.                                                    >        No. 23-3180
                                                             │
                                                             │
 CITY OF BLUE ASH, OHIO; DAVID WALTZ, individually           │
 and in his official capacity as City Manager of the         │
 City of Blue Ash; SCOTT NOEL, individually and in his       │
 official capacity as Chief of the Blue Ash Police           │
 Department,                                                 │
                                Defendants-Appellees.        │
                                                             ┘

  Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
                   No. 1:19-cv-01072—Michael R. Barrett, District Judge.

                            Decided and Filed: September 23, 2024

                   Before: WHITE, THAPAR, and BLOOMEKATZ, Circuit Judges.
                                   _________________

                                            COUNSEL

ON MERITS AND SUPPLEMENTAL BRIEFS: Zachary Gottesman, GOTTESMAN &
ASSOCIATES, Cincinnati, Ohio, Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC,
Covington, Kentucky, for Appellant. Dawn M. Frick, SURDYK, DOWD & TURNER, Dayton,
Ohio, for Appellees Waltz and Noel in their official capacities and for Appellee City of Blue
Ash. Kirk M. Wall, H. Devon Collins, DINSMORE & SHOHL LLP, Columbus, Ohio, for
Appellees Waltz and Noel in their individual capacities.
 No. 23-3180                    McNeal v. City of Blue Ash, Ohio                          Page 2


                                      _________________

                                           OPINION
                                      _________________

       HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Gary McNeal appeals the grant
of summary judgment to Defendants-Appellees—the City of Blue Ash, David Waltz, and Scott
Noel—in this action stemming from the alleged humiliation, scrutiny, and discipline McNeal
experienced in the final years of his employment as a police officer and the termination of that
employment.     Because McNeal cannot show that age was the “but-for” reason for the
termination of his employment, we AFFIRM the district court as to that claim, but we
REVERSE on McNeal’s claim of a hostile work environment against Blue Ash.

                                            I. Facts

       In November 2018, the City of Blue Ash terminated McNeal’s employment as a police
officer. McNeal had over thirty-three years of experience in law enforcement—of those, the last
seventeen years were with the Blue Ash Police Department (the “Department”). At the time of
his dismissal, McNeal was sixty-one years old—the oldest officer in the Department.

       McNeal maintains that he had an “almost perfect record” through 2015, and that things
began to change shortly after Noel—now the police chief—was promoted to a supervisory
position around 2015 and to chief in 2017. Appellant’s Brief at 1. McNeal alleges that he faced
discriminatory and disproportionate discipline under Noel’s leadership.

                                    A. Disciplinary History

       McNeal’s 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
 No. 23-3180                        McNeal v. City of Blue Ash, Ohio                                   Page 3


discrimination. He claims that the assignment was intended to frustrate and embarrass him, and
to give the Department a reason to discipline him when he inevitably failed.

        Then, from April 2016 to July 2017, Noel and Sergeant Rob 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.1 Then, McNeal received an oral reprimand in December 2016 for failing to turn in training
certificates on time. The 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 at a construction
site 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 on an assigned
police report despite receiving numerous reminder emails over a three-month period.

        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 to make it easier to fire him in the future. R. 27, PID 687. 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. Id. at 687. McNeal testified
that, by the end of the meeting, Noel had validated his concerns. Noel, however, believed the
conversation was productive.

                                             B. Final Incident

        On June 26, 2018, the Department dispatched McNeal to a local restaurant in response to
a 911 call describing a potential overdose. As McNeal left the police station, the description of

        1Documented “counseling” is a type of discipline where a supervisor meets with an employee to provide a
copy of departmental policy, counsels the employee on how to comply with the policy, and makes a record of the
intervention. R. 25, PID 331. Because McNeal was identified as “one of the primary offenders” of the
Department’s microphone policy, McNeal met with his supervisors informally in April 2016 to discuss his
compliance. Id. Shortly after, McNeal made another traffic stop without activating his microphone, at which point
Noel issued the documented counseling.
 No. 23-3180                    McNeal v. City of Blue Ash, Ohio                           Page 4


the situation changed from potential overdose to a “non-breather”—the individual suffered from
a heart condition, not a drug overdose. R. 27, PID 742. At the time, McNeal knew that CPR was
being administered to the individual and that an ambulance was on the way. Because an officer
accompanies every ambulance in Blue Ash, McNeal was still obligated to respond even though
no criminal activity was suspected. McNeal was the principal officer assigned to the incident,
but three other officers were involved: Sergeant Edward Charron was assigned as the secondary
officer to accompany McNeal; Officer Dane Baumgartner self-dispatched after hearing about the
incident; and Noel drove to the restaurant to “spot check” the performance of his officers in a
situation where someone might die. R. 25, PID 340–41.

       McNeal took one minute and fifty-four seconds to exit the police station and reach his
vehicle. Then, he sat in his vehicle for fifty-two seconds before leaving the station. McNeal
testified that it took him a few moments to read the details of the dispatch and he had to wait for
Noel to pull his car out of the parking lot in front of him. On his way to the restaurant, which
was 1.4 miles away, McNeal did not use his lights or siren. A few officers testified that, in these
types of emergencies, officers generally stay behind ambulances as an “unwritten rule” to avoid
interfering with the medical response. R. 37, PID 2406.

       Noel arrived at the restaurant first, four minutes and nineteen seconds after the dispatch.
Baumgartner and McNeal arrived next—five minutes and twenty-one seconds after the initial
dispatch—even though Baumgartner left the station seventy-three seconds after McNeal.
Charron arrived last, six minutes and forty-seven seconds after the dispatch.

       Unfortunately, the individual with the heart condition passed away.          McNeal’s and
Charron’s “slow” responses made no difference in the situation; but expressing concern that the
response time could be the difference “between life and death” in the future, and believing
McNeal and Charron had taken excessive time in the past, Noel authorized an investigation into
the incident. R. 25, PID 286–87; R. 29-1, PID 1116.

                               C. Investigation and Termination

       Blue Ash requires its officers to be familiar with the Department’s policies. In cases of
emergency, the Department requires officers to respond with their lights and siren activated,
 No. 23-3180                         McNeal v. City of Blue Ash, Ohio                                     Page 5


which is called a “Code 3” response. R. 25, PID 288; R. 27-5, PID 995–96. Because officers are
exempt from many traffic laws when they respond Code 3, this rule hastens an officer’s
response. Officers have some discretion to decide when to respond Code 3, but they must
“immediately notify Dispatch” if they respond without lights and a siren. Id. Without Code 3,
officers must follow all regular traffic laws.

        The investigation into the episode 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, R. 27-7, PID 1018, and that McNeal had violated a number of Department policies,
some over 100 times.

        First, McNeal violated departmental policy by failing to notify dispatch that he would not
respond Code 3. Second, he violated policy by exceeding the speed limit without invoking Code
3. McNeal drove fifty-one miles per hour through a forty-mile-per-hour zone and forty-six miles
per hour through a twenty-five-mile-per-hour zone. The investigation found that McNeal had
violated the same policy three months earlier, when he traveled fifty-seven miles per hour
through a twenty-five-mile-per-hour zone without a Code 3 response.                           Third, the report
concluded that McNeil violated policy by failing to demonstrate familiarity with the
Department’s rules.

        Fourth, McNeal violated the Department’s policy requiring officers to use a microphone
to record each traffic stop.2 Out of the thirty-seven traffic stops McNeal conducted in 2018, he
failed to use a microphone twenty-nine times. Fifth, McNeal violated the Department’s policy
requiring officers to verify that their in-car camera functions properly at the beginning of each
shift. According to the report, McNeal failed to properly check his in-car camera for the entire
first half of 2018—not once in 109 shifts. Noel testified that these violations were serious



        2Blue Ash explains that although the investigators focused on McNeal’s response to the “non-breather,”
they wanted to check whether McNeal’s responses to other recent episodes had been satisfactory. The first video
investigators reviewed was from a traffic stop earlier in July, but it had no audio. As a result, the investigators
checked a few of McNeal’s recent traffic stops, none of which had audio either. At that point, investigators decided
to review all of McNeal’s traffic stops for the year.
 No. 23-3180                          McNeal v. City of Blue Ash, Ohio                                     Page 6


because they stymied the Department’s ability to gather evidence against defendants and
increased the Department’s legal exposure.

        Sixth, McNeal violated the Department’s policy requiring officers to be truthful during an
investigation interview. McNeal told investigators that he checked his in-car camera “most of
the time” and that he “tr[ied] to” use his microphone for every traffic stop. R. 27-7, PID 1021.
Because it appeared that McNeal regularly violated the Department’s camera and microphone
policies, investigators determined that his statements were not truthful. The report further
concluded that, under the county prosecutor’s interpretation of Brady v. Maryland, 

(1963), the Department would be required to disclose to criminal defendants that McNeal had a
history of dishonesty should he ever be called to testify.3 Because the ability to testify as a
credible witness is an essential function of an officer’s job, investigators believed that McNeal
was no longer qualified for his position.

        After outlining McNeal’s new infractions together with his prior disciplinary history, the
report recommended that McNeal’s employment be terminated. Chief Noel forwarded the report
to Waltz, the city manager, expressing his agreement.                         Noel asserted that McNeal’s
untruthfulness alone was sufficient to warrant termination because it inhibited his ability
to perform his essential job duties. Additionally, because the violations regarding recording
equipment were so pervasive, Noel believed that McNeal’s violations had been “willful.”
R. 27-7, PID 1002.

        The Department offered McNeal the opportunity to retire voluntarily or to attend a pre-
disciplinary hearing, but McNeal declined both alternatives. Ultimately, Blue Ash terminated
McNeal’s employment.            McNeal filed a grievance through his union; the parties went to
arbitration, and the arbitrator upheld the termination decision.


        3In 2011, the Hamilton County prosecutor sent a letter to the Department detailing his interpretation of
Brady, which he believed required disclosure of “any impeaching evidence regarding the credibility and veracity of
all witnesses — including police officers.” R. 25-1, PID 455. The prosecutor wrote that this included any
information regarding an officer’s “past misconduct or relevant disciplinary action contained in internal affairs
files.” 

 As a result, the prosecutor recommended that the Department adopt “strict termination policies for
officers found to be untruthful in reports, testimony or interviews.” 

 Noel testified that the county prosecutor’s
office had a general rule against proceeding with cases where a key testifying police officer had a record of
dishonesty.
 No. 23-3180                    McNeal v. City of Blue Ash, Ohio                          Page 7


       McNeal brought this action against Waltz, Noel, and the City of Blue Ash. In his Second
Amended Complaint, McNeal raised federal and state claims of retaliation, racial discrimination,
and age discrimination. Defendants moved for summary judgment on all claims. Because
McNeal’s brief opposing summary judgment addressed only his age-discrimination claims, the
district court concluded that the other claims were abandoned. The district court also granted
summary judgment on the ADEA claims, holding that McNeal put forth insufficient facts to
show that Defendants’ legitimate, non-discriminatory reasons for termination were pretextual or
that he was subject to age-based harassment.

       McNeal appeals the district court’s grant of summary judgment on his age-discrimination
claims but does not attempt to revive the abandoned claims.

                                    II. Standard of Review

       We review the district court’s grant of summary judgment de novo. Lowe v. Walbro
LLC, 

 (6th Cir. 2020). Summary judgment is appropriate if there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Saunders v. Ford Motor Co.,

 (6th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 

(1986)). The moving party bears the burden of demonstrating that there is no genuine dispute of
material fact. 

 Because McNeal is the non-moving party, we must accept his evidence as true
and draw all reasonable inferences in his favor. Logan v. Denny’s, Inc., 

 (6th
Cir. 2001).

                               III. Disparate-Treatment Claim

       The Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits employers
from taking adverse employment actions against employees over the age of forty due to their
age. 

(a), 631(a) (2018). To succeed on a disparate-treatment claim under the
ADEA, a plaintiff must show, by a preponderance of the evidence, that age was the “but-for”
cause of an adverse employment decision. Gross v. FBL Fin. Servs., Inc., 

, 176–78
(2009). Meeting the ADEA’s requirement is “no simple task” because it requires plaintiffs to
 No. 23-3180                       McNeal v. City of Blue Ash, Ohio                                  Page 8


show that age was the “determinative reason” they were terminated. Pelcha v. MW Bancorp,
Inc., 

, 323–24 (6th Cir. 2021).4 Here, to defeat Defendants’ motion for summary
judgment, McNeal must show a “material fact that, if resolved in h[is] favor, could persuade a
reasonable juror that age was the but-for cause of h[is] termination.” 

.

        A plaintiff may show a violation of the ADEA through either direct or circumstantial
evidence. 

 Direct evidence is evidence that “explains itself,” 

 (quoting Gohl v. Livonia
Pub. Schs. Sch. Dist., 

 (6th Cir. 2016)), because it “proves the existence of a
fact without requiring any inferences,” Rowan v. Lockheed Martin Energy Sys., Inc., 

 (6th Cir. 2004). Circumstantial evidence, by contrast, requires factfinders to draw
inferences from the evidence to determine that a plaintiff’s termination was based on age.
Pelcha, 

. McNeal does not point to any direct evidence of age discrimination and
relies on circumstantial evidence to make his claim.

                                         A. McDonnell Douglas

        We use the McDonnell-Douglas burden-shifting framework to analyze discrimination
claims based on circumstantial evidence. Id.; McDonnell Douglas Corp. v. Green, 

,
802–06 (1973).      The McDonnell Douglas analysis has three steps.                First, a plaintiff must
establish a prima facie claim of discrimination. Pelcha, 

. To do so, a plaintiff
must show that the plaintiff (1) was a member of a protected class (older than forty years old);
(2) suffered an adverse employment action; (3) was qualified for the position held; and (4) was
replaced by someone outside of the protected class or similarly situated non-protected employees
were treated more favorably. 

 If a plaintiff successfully makes a prima facie claim of
discrimination, the burden of production “shifts to the employer to identify a legitimate,
nondiscriminatory reason” for the adverse employment action. 

. If the employer
identifies a legitimate reason, the burden shifts back to the plaintiff to prove that the employer’s
reason is pretextual. 

        4The ADEA’s standard is stricter than Title VII’s, where plaintiffs need demonstrate only that their
membership in a protected class is a “motivating factor” in an adverse employment decision. Gross, 

.
 No. 23-3180                    McNeal v. City of Blue Ash, Ohio                           Page 9


       The parties dispute whether McNeal met the requirements of a prima facie case of age
discrimination. We assume, without deciding, that McNeal has met his burden on the first step
of McDonnell Douglas. Appellees argue that they disciplined and eventually fired McNeal
because of his misconduct, not for any discriminatory reason. Because McNeal has not made an
adequate showing of pretext supporting that his age was the but-for reason for the termination of
his employment, we conclude that summary judgment was properly granted on this claim.

                                            B. Pretext

       A plaintiff can demonstrate pretext by showing that an employer’s stated reasons for an
adverse employment action (1) have no basis in fact, (2) did not actually motivate the action, or
(3) were insufficient to warrant the action. Seeger v. Cincinnati Bell Tel. Co., LLC, 

 (6th Cir. 2012). McNeal has the burden of producing sufficient evidence from which
the jury could reasonably reject Defendants’ explanation and infer that the actual reason for
termination was his age. Id.

                                         1. Basis in Fact

       McNeal has not shown that the asserted reasons for his termination lacked a factual basis.
Throughout his testimony, McNeal was frequently asked whether he could produce any evidence
to dispute the facts that served as the basis for his discipline. McNeal repeatedly conceded that
he could not produce evidence to dispute the factual basis of his prior discipline and eventual
termination. As a result, the first avenue to show pretext is foreclosed.

                                   2. Employer’s Motivation

       The second way to demonstrate pretext is by showing that the reasons given for
McNeal’s termination did not actually motivate the discipline and that age was the actual
motivation. See St. Mary’s Honor Ctr. v. Hicks, 

, 515–17 (1993); Tingle v. Arbors
at Hilliard, 

 (6th Cir. 2012). The district court concluded that McNeal failed
to point to any evidence showing that the reason for his termination was false or that his age was
the actual motivation.    McNeal challenges the district court’s ruling, citing testimony and
declarations from officers that older officers faced increased scrutiny. See, e.g., R. 35, PID 2195
 No. 23-3180                     McNeal v. City of Blue Ash, Ohio                          Page 10


(Charron testifying that “[Officer Page] was telling me that he felt he was being targeted.”);
R. 30, PID 1785 (Officer Mark Ziegler’s declaration that “I observed older officers be placed
under a lot more scrutiny than the younger officers.”); R. 37, PID 2406 (Officer Christopher
Zielinski’s declaration that “I absolutely witnessed unfair and unlawful practices . . . that favored
younger officers over older officers.”).

       Even if it is true that the Department generally scrutinized the performance of older
officers to a greater degree than younger officers, McNeal has not presented sufficient evidence
that the reasons given for his termination—an extensive list of disciplinary infractions that
included untruthfulness—were not the true reasons. McNeal does not contest, for example, that
the Department would be required to disclose his untruthfulness to defendants at trial, rendering
him unable to perform an essential job duty. Nor does McNeal dispute that the Department was
legitimately concerned that his pervasive failure to follow the recording policies jeopardized the
Department’s ability to gather evidence and limit its exposure to liability. Because the ADEA
requires plaintiffs to show that age is the “but-for” cause of the disciplinary action—not simply a
motivating factor—McNeal cannot proceed if his termination was at least partly caused by
Defendants’ non-discriminatory reasons. Gross, 

. He does not meet this burden
on the second prong.

                                  3. Sufficiency of Explanation

       Finally, a plaintiff can establish pretext by demonstrating that the reasons provided by an
employer are insufficient to warrant termination. Seeger, 

. This route usually
involves the plaintiff presenting evidence that other employees, particularly outside the protected
class, were not disciplined although they engaged in “substantially identical conduct to that
which the employer contends motivated its discipline of the plaintiff.” Chattman v. Toho Tenax
Am., Inc., 

 (6th Cir. 2012). McNeal does not need to demonstrate “an exact
correlation” to another employee receiving favorable treatment to show pretext, Ercegovich
v. Goodyear Tire & Rubber Co., 

 (6th Cir. 1998), but the two “must be similar
in ‘all of the relevant aspects,’” 

 (quoting Pierce v. Commonwealth Life Ins. Co., 

 (6th Cir. 1994)). In the disciplinary context, the relevant considerations include whether the
employees (1) “dealt with the same supervisor,” (2) were “subject to the same standards,” and
 No. 23-3180                          McNeal v. City of Blue Ash, Ohio                                    Page 11


(3) “engaged in the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer’s treatment of them for it.” Pelcha, 

 (quoting Ercegovich, 

). Such a showing creates a genuine issue of material
fact because it undermines the credibility of the employer’s reasons for the discipline and allows
a factfinder to infer illegal discrimination. Chattman, 

.

         Here, McNeal’s supervisors recommended termination for numerous reasons, but noted
that his untruthfulness warranted dismissal on its own. Blue Ash believed that Brady would
require it to inform criminal defendants of McNeal’s history of false statements, seriously
hampering McNeal’s ability to be a credible witness at trial.                     

. Blue Ash
accordingly determined that McNeal could no longer perform an essential function of his
position. Noel cited a 2011 letter from the county prosecutor as the basis for this conclusion,
which urged the department to adopt “strict termination policies for officers found to be
untruthful in reports, testimony or interviews.” R. 25-1, PID 455.

         McNeal offered no evidence that he was treated differently than other officers with
respect to his untruthful statements. In fact, McNeal did not address this issue at all in his briefs.
As Defendants point out, the record reveals only one other individual who had a documented
case of untruthfulness: Charron, the sergeant who, like McNeal, was slow to respond to the non-
breather situation.       As with McNeal, the Department offered Charron a chance to retire
voluntarily or face termination. In this vital respect, McNeal cannot show that any other officer
was treated differently after engaging in “substantially identical conduct” to that which
motivated his discharge. Chattman, 

.

         Because no reasonable juror could find in light of McNeal’s uncontested untruthfulness
that age was the but-for cause for the termination of his employment, the district court did not err
in granting summary judgment on this claim.5


          5McNeal also raised a state claim of age discrimination under Ohio law. Ohio Rev. Code. Ann.
§ 4112.02(A). The parties dispute whether McNeal’s age-discrimination claim under state law is barred by the
statute of limitations. We do not need to resolve the issue because Ohio’s anti-discrimination statute closely mirrors
federal law, and Ohio courts generally use federal precedent in Title VII and AEDA cases to interpret state law. See
Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio C.R. Comm’n, 

 (Ohio 1981);
Bucher v. Sibcy Cline, Inc., 

 (Ohio Ct. App. 2000); Ercegovich, 

 (“Under Ohio
 No. 23-3180                        McNeal v. City of Blue Ash, Ohio                                  Page 12


                                IV. Hostile-Work-Environment Claim

        Individuals can raise a hostile-work-environment claim under the ADEA when their
workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Oncale v. Sundowner Offshore Servs., Inc., 

 (1998); see
also Crawford v. Medina Gen. Hosp., 

 (6th Cir. 1996) (holding that a hostile-
environment claim is actionable under the ADEA as under Title VII because the statutes share
similar language).       McNeal argues that he was subjected to a hostile work environment
consisting of two years of “repetitive, severe, humiliating, discipline and scrutiny” and
assignment to a demeaning task—the 2016 traffic study. Reply Brief at 25. Unlike the first
claim, which concerns the circumstances of McNeal’s termination, this claim requires us to
consider the circumstances of McNeal’s entire disciplinary history and treatment in resolving
whether his hostile-work-environment claim survives. Compare Appellant’s Brief at 29 (citing
McNeal’s termination as the challenged adverse employment action in his disparate-treatment
claim) with Appellant’s Brief at 41 (arguing that McNeal was subjected to a hostile-work
environment for the two years preceding his termination).

        There are four elements required to establish a prima facie claim of a hostile work
environment under the ADEA: (1) the employee is forty years old or older, (2) the employee
was subjected to “harassment, either through words or actions, based on age,” (3) the harassment
affected the employee by “creating an objectively intimidating, hostile, or offensive work
environment,” and (4) there is some basis of liability on the part of the employer. Crawford,
96 F.3d at 834–35. The first and fourth elements are not in dispute. McNeal is over forty years
old and he alleges that the hostile work environment was caused by his supervisors, which would
subject his employer to vicarious liability.




law, the elements and burden of proof in a state age-discrimination claim parallel the ADEA analysis.”); Blizzard
v. Marion Technical College, 

 (6th Cir. 2012) (saying the same and confirming that the “but-for”
standard is used). Summary judgment is appropriate on McNeal’s state age-discrimination claim for the same
reason as for his federal claim: McNeal cannot show that age was the “but-for” cause of his discharge.
 No. 23-3180                    McNeal v. City of Blue Ash, Ohio                          Page 13


                                    A. Age-Based Treatment

       Defendants argue that McNeal fails to meet the second element because he did not
present any evidence that his treatment was due to his age. However, McNeal cited testimony
that older officers were regularly subjected to greater scrutiny, and highlighted examples
showing that younger officers did not face discipline for their policy violations. See, e.g., R. 42,
PID 2847–54 (Officer Kenneth Schrand testifying that he faced scrutiny after entering the
Deferred Retirement Option Plan (“DROP”) and describing an episode where somebody other
than his sergeant questioned officers about Schrand’s response to an incident); R. 51, PID 3319
(Sergeant Todd Stewart testifying to an example where an inexperienced officer received a
promotion over officers with far more expertise); R. 35, PID 2208 (Charron testifying that the
Department had him “ride along” with an officer near retirement age to scrutinize the officer’s
performance); 

 at PID 2196–2198 (Charron testifying that he heard a conversation where
supervisors discussed “how they would get rid of EP,” an older officer, and then witnessed EP
get disciplined for minor infractions); R. 51, PID 3369–72 (Stewart testifying that Officer
Ballman, a younger officer, did not receive discipline after running a red light at 75 miles per
hour, nor for another incident where she failed to activate her camera system during a pursuit);
R. 35, PID 2216–20 (Charron testifying that Officer Owens, a younger officer, did not receive
discipline after he failed to close out a report for a long period of time); 

 at PID 2167–70
(Charron testifying that Officer Huff, a younger officer, was not disciplined for failing to respond
to an emergency).

       In a hostile-work-environment claim, a plaintiff may introduce evidence of
“discriminatory acts or practices [directed] at the protected group of which the plaintiff is a
member, and not just at the plaintiff.” Jackson v. Quanex Corp., 

 (6th Cir.
1999). The evidence, taken together and considered in the light most favorable to McNeal, could
support the conclusion that McNeal’s treatment during his employment was due to his age.

                               B. Discrete Acts of Discrimination

       McNeal points to the following broad allegations in support of his hostile-work-
environment claim: the discipline he faced in response to commonplace acts; the increased
 No. 23-3180                          McNeal v. City of Blue Ash, Ohio                                     Page 14


scrutiny and surveillance he faced compared to other officers; and his supervisors’ demeaning
behavior.

         However, it is possible that some of the facts supporting these allegations may not be
used to support McNeal’s hostile-work-environment claim. Following oral argument, our court
decided Ogbonna-McGruder v. Austin Peay State Univ., 

 (6th Cir. 2024).6 The
Ogbonna-McGruder panel clarified the difference between discrimination claims based on
disparate treatment and claims based on a hostile work environment, holding that allegations of
discrete discriminatory acts otherwise actionable as independent disparate-treatment claims do
not by themselves constitute harassment supporting a hostile-work-environment claim.7 

 at
839–40. That reasoning is consistent with Hunter v. Sec’y of U.S. Army, 

 (6th Cir.
2009), in which this court held that “[t]he failure to promote an employee . . . is a discrete act
that cannot alone amount to a hostile work environment.”                        

 (emphasis added).
Therefore, as in Ogbonna-McGruder, we must determine which of McNeal’s allegations
constitute the kind of separately actionable discrete acts that are excluded from consideration in
his hostile-work-environment claim.8 See 

         To begin, not every allegedly discriminatory incident is actionable simply because it is a
discrete act. After all, a hostile-work-environment claim is “based on the cumulative effect of
individual acts,” many of which are not actionable on their own. National R.R. Passenger Corp.




         6Because the new precedent may affect the outcome here, we requested supplemental briefing from the
parties discussing Ogbonna-McGruder’s impact on McNeal’s hostile-work-environment claim.
         7Ogbonna-McGruder’s holding was based on our court’s previous precedent that “[a] suspension, like a
termination, denial of transfer, or refusal to hire, constitutes a separate actionable ‘unlawful employment practice,’”
and thus cannot be characterized as part of a continuing hostile work environment. Sasse v. U.S. Dep’t of Lab.,

 (6th Cir. 2005) (quoting National R.R. Passenger Corp. v. Morgan, 

 (2002)).
In contrast, “a hostile work environment claim is composed of a series of separate acts that collectively constitute
one ‘unlawful employment practice.’” Morgan, 

 (quoting 42 U.S.C. § 2000e–5(e)(1)). A hostile
work environment is a kind of atmospheric hostility that, although generated by discrete incidents, hangs over the
entire employment experience. It does not “occur on any particular day” because it is greater than the sum of its
parts. See id. at 115.
         8McNeal concedes that his suspensions and termination are excluded from consideration in his
hostile-work-environment claim.
 No. 23-3180                         McNeal v. City of Blue Ash, Ohio                                    Page 15


v. Morgan, 

 (2002) (emphasis added). Accordingly, only discrete acts that are
“adverse employment decision[s]” can be challenged in a disparate-treatment claim.9 

.

        An adverse employment action involves “a loss of pay or benefits, a detrimental change
in responsibilities, a negative change in the terms or conditions of employment, or some other
actual and unfavorable change in job status.” Milczak v. Gen. Motors, LLC, 

 (6th Cir. 2024) (quoting Barrett v. Lucent Techs., Inc., 

 (6th Cir.
2002)). Until recently, many circuits—including our own—did not consider discrete acts to be
adverse employment actions unless they caused a relatively high level of harm. See, e.g., White
v. Baxter Healthcare Corp., 

 (6th Cir. 2008) (requiring plaintiffs to show a
“significant change in employment status” (quoting Burlington Indus. v. Ellerth, 

 (1998))). However, in the recent case of Muldrow v. City of St. Louis, 

, 354–55
(2024), the Court abrogated circuit court cases across the country that required plaintiffs to show
a high level of harm to challenge a discriminatory transfer.10 

 at 353 n.1. Although Muldrow
involved transfers, the Court made clear that its interpretation stemmed from Title VII’s
generally applicable statutory language, mirrored in the ADEA, which contains no language
requiring plaintiffs to show a high level of harm. 

 Thus, to challenge a discrete act in a
disparate-treatment claim, the statute requires only that a plaintiff show “some harm respecting
an identifiable term or condition of employment.” 

. Crucially, the harm does not have
to be “significant” or “serious, or substantial, or any similar adjective suggesting that the
disadvantage to the employee must exceed a heightened bar.” 

 In short, the employment

        9Appellees argue in their supplemental briefs that all of McNeal’s allegations are discrete acts that cannot
be raised in his hostile-work-environment claim because they “could have arguably been alleged as separate
claims.” Blue Ash Supp. Brief at 6; see Noel Supp. Brief at 13. However, Appellees argued earlier that all of
McNeal’s allegations, even taken together, were not serious enough to alter the conditions of his employment. See,
e.g., Blue Ash Brief at 38 (“[N]o reasonable jury could find that the actions of Appellees rise to the level of
sufficiently severe or pervasive to alter the conditions of employment.”). These positions appear contradictory. On
one hand, Appellees argue that the allegations collectively are not serious enough to make out a hostile-work-
environment claim, but they also argue that the individual allegations are sufficiently serious to be brought as
separate disparate-treatment claims.
        10For example, the Court abrogated the Eleventh Circuit’s requirement that plaintiffs show a “serious and
material change in the terms, conditions, or privileges of employment,” Webb-Edwards v. Orange Cnty. Sheriff’s
Off., 

 (11th Cir. 2008) (quoting Davis v. Town of Lake Park, 

 (11th Cir.
2001)), abrogated by Muldrow, 

, and the Second Circuit’s requirement that plaintiffs show a
“materially significant disadvantage,” Williams v. R.H. Donnelley, Corp., 

 (2d Cir. 2004) (quoting
Galabya v. N.Y.C. Bd. of Educ., 

 (2d Cir. 2000)), abrogated by Muldrow 

.
 No. 23-3180                          McNeal v. City of Blue Ash, Ohio                                    Page 16


action is adverse if it leaves the employee “worse off respecting employment terms or
conditions.” 

 We thus recognize that Muldrow may displace prior cases from our circuit
requiring disparate-treatment plaintiffs to show heightened levels of harm.11

        Sometimes, it is relatively easy to determine whether an act constitutes an adverse
employment action—such as “hiring, firing, [and] failing to promote.” White, 

(quoting Ellerth, 

). In other instances, however, it is more difficult to determine
whether an act produces a “disadvantageous” change in “an identifiable term or condition.”
Muldrow, 

.12

        And to make matters more complicated, an adverse employment action can affect
employment terms or conditions on two registers. By definition, an adverse action can cause a
change in the terms or conditions of employment. But an adverse action deployed strategically
as harassment can also add to a climate of hostility that represents a different change in the terms
or conditions of the job. To use the Supreme Court’s words, a discrete discriminatory act may
have “occurred” on one day and thus be actionable, but it also may be part of a separate harm
that “occurs over a series of days or perhaps years.” See Morgan, 

. In the
hostile-work-environment context, we exclude adverse actions that operate only on the first
register, but consider the ones that operate on the second.


        11We note that our circuit’s language in White requiring plaintiffs to show a “significant change in
employment status” was lifted from the Court’s decision in Ellerth, 

. However, the Court clarified in
a subsequent case that this language from Ellerth should not be read as restricting antidiscrimination claims. See
Burlington N. & Santa Fe Ry. Co. v. White, 

 (2006). Rather, Ellerth’s definition applies “only to
‘identify a class of [hostile-work-environment] cases’ in which an employer should be held vicariously liable
(without an affirmative defense) for the acts of supervisors.” 

 (alteration in original) (quoting Ellerth,

). Thus, the Court made clear that “Ellerth did not discuss the scope of the general
antidiscrimination provision.” Id. at 65. However, our circuit in White continued to use Ellerth’s language broadly
to define adverse employment actions. We recognize, in light of Muldrow, that it is no longer appropriate to
categorically apply Ellerth’s language to classify adverse employment actions.
        12For example, we have held that “a negative performance evaluation does not constitute an adverse
employment action unless the evaluation has an adverse impact” on employment terms or conditions. White,

 (quoting Tuttle v. Metro. Gov’t of Nashville, 

 (6th Cir. 2007)); see also Jones v.
City of Franklin, 

, 944–45 (affirming the district court’s conclusion that Jones’s negative
evaluation was not an adverse employment action because it did not affect his wage). But in Ogbonna-McGruder,
this court held that the plaintiff’s negative evaluation was a discrete act of employment discrimination, even though
it was not accompanied by any other harm to the employment terms or conditions. 

. These cases
appear to be in tension, complicating matters further. Because White and Tuttle were decided before Ogbonna-
McGruder, we cannot ignore these earlier cases. Helphenstine v. Lewis County, 

 (6th Cir. 2023).
 No. 23-3180                         McNeal v. City of Blue Ash, Ohio                                   Page 17


        McNeal first cites his assignment to complete a traffic study, which he alleges was
intended to demean and humiliate him and to provide his superiors with an excuse to monitor
and discipline him. Appellees argue that the traffic study cannot be considered because “an
employer’s decision[s] to give an employee ‘unattainable and undesirable work assignments’ are
‘discrete acts’ of discrimination.” Noel Supp. Brief at 11 (quoting Ogbonna-McGruder, 

).13 McNeal does not argue simply that the work he had to complete was itself harassment.
Rather, McNeal asserts that traffic studies require “specialized training or experience,” and he
was set up to fail from the beginning because he was “provided no training or direction.”
Appellant’s Supp. Brief at 6, 9. Thus, the evidence supporting a hostile-work-environment claim
is not the unfavorable assignment itself but the fact that the Department allegedly engaged in
conduct designed to (1) frustrate, demean, and embarrass him in front of his coworkers; (2)
justify more disciplinary action against him when he inevitably fell short of the unreasonable
expectations; and (3) force him further under the microscope by requiring him to report to two
supervisors on his progress weekly. The significance of the traffic study for hostile-work-
environment purposes is that the Department allegedly used the assignment strategically in a
broader effort to discredit McNeal.

        In Ogbonna-McGruder, we distinguished between a work reassignment and related
evidence of harassment. In that case, the defendant denied Ogbonna-McGruder’s request to
teach political science courses, telling her that, although she had taught courses in the department
for eighteen years, she “was not qualified to teach political science.” Ogbonna-McGruder,

. The court determined that the reassignment itself was a separately actionable
discrete act, but the accompanying explanation was a demeaning statement that could be used to
support a hostile-work-environment claim. 

. That principle applies with equal force
here.14 Regardless whether McNeal’s traffic-study assignment itself could potentially be raised

        13This quote from Ogbonna-McGruder refers to the unpublished case of Cecil v. Louisville Water Co.,

 (6th Cir. 2008). In that case, however, the panel analyzed Cecil’s claims—that her employer
refused to train her and assigned her unattainable and undesirable work assignments—both as discrete acts of
discrimination and as incidents contributing to a hostile work environment. See 

 (analyzing Cecil’s
claim that her employer’s “denial of training and discriminatory assignments of work” contributed to a hostile work
environment).
        14We thus reject Appellees’ argument that Ogbonna-McGruder requires us to sort every discrete act into
one of two mutually exclusive buckets. Instead, we recognize that a single discrete act may contribute to different
 No. 23-3180                          McNeal v. City of Blue Ash, Ohio                                     Page 18


in a disparate-treatment claim, the auxiliary evidence of harassment may be used to support a
hostile-work-environment claim.

         This reading of Ogbonna-McGruder squares with Supreme Court precedent. The Court
has held that a hostile-work-environment claim is “based on the cumulative effect of individual
acts” occurring over the span of weeks, months, or years. Morgan, 

. An
individual act within a hostile-work-environment claim “may not be actionable on its own,” 

(emphasis added)—but there is no requirement that the act not be independently actionable. As
the Court recently explained, a hostile-work-environment claim “includes every act composing
that claim, whether those acts are independently actionable or not.” Green v. Brennan, 

 (2016) (citing Morgan, 

) (emphasis added). Thus, “even if a claim
of discrimination based on a single discriminatory act is time barred, that same act could still be
used as part of the basis for a hostile-work-environment claim.” 

 at 562 n.7 (emphasis added).
That conclusion makes good sense.                 Whether a given act contributes to a hostile work
environment does not turn on whether that act might support a separate claim.15

         To reconcile Ogbonna-McGruder with Morgan and Green, we read Ogbonna-McGruder
to bar a plaintiff from including in a hostile-work-environment claim only those discrete acts that
result in a separate discriminatory harm to the terms and conditions of employment that does not
“contribut[e]” to the alleged environment of harassment. Ogbonna-McGruder, 

.




types of harms. To the extent that a discrete act, on its own, causes a change in the terms and conditions of
employment, it may be challenged in a disparate-treatment claim. However, when a discrete act also contributes to a
different and continuing harm—for example, the pervasive humiliation of an employee—its ancillary impacts may
be considered in a hostile-work-environment claim.
         15Our sister circuits have reached similar conclusions.    See King v. Aramark Services, Inc., 

 (2d Cir. 2024) (holding that “the same discrete act” can “support both” an individual adverse-employment-
action claim and a hostile-work-environment claim); Guessous v. Fairview Prop. Invs., LLC, 

 (4th
Cir. 2016) (“So long as the act is part of the pattern of discriminatory treatment against the employee,” it may be
included in a hostile-work-environment claim, “even if the act would otherwise qualify as a discrete act that is
independently actionable.”); Baird v. Gotbaum, 

 (D.C. Cir. 2011) (finding “no authority for
the idea that particular acts cannot as a matter of law simultaneously” be independently actionable and support a
hostile-work-environment claim); Chambless v. La.-Pac. Corp., 

 (11th Cir. 2007) (an
independently-actionable discrete act may be considered as part of a hostile-work-environment claim “[w]here the
discrete act is sufficiently related” to the alleged environment of harassment); but see Porter v. Cal. Dep’t of Corr.,

 (9th Cir. 2005). To the extent these cases conflict with Ogbonna-McGruder, we recognize that
we are bound by our in-circuit precedent.
 No. 23-3180                   McNeal v. City of Blue Ash, Ohio                        Page 19


Because the traffic-study assignment provides evidence of the environment of harassment
McNeal alleges in his hostile-work-environment claim, we may consider that evidence.

       Beyond the traffic-study assignment, McNeal also cites the frequent discipline he faced
for minor violations. Appellees argue that each instance of discipline was a discrete act that
must be raised in a disparate-treatment claim. But even if some of these disciplinary incidents
were separately actionable, we would still consider whether the incidents were also weaponized
as tools of harassment in the “same actionable hostile work environment practice.” Morgan,

. Here, there is evidence indicating that the Department imposed discipline as a
vehicle to target and belittle McNeal. Notably, McNeal points to testimony that Noel was
“grinning from ear to ear,” “smiling,” and “giggling” when discipline was meted out to McNeal.
R. 35, PID 2242. Noel reportedly asked about McNeal’s reaction to some discipline with
excitement and enthusiasm, as though “he [was] getting off, he [was] enjoying the fact that an
employee of his [was] being messed with.” 

       At any rate, these disciplinary incidents would not be independently actionable. Only
discipline causing “some harm respecting an identifiable term or condition of employment” is
actionable on its own. Muldrow, 

. For example, this court previously held that
“[a] written reprimand, without evidence that it led to a materially adverse consequence such as
lowered pay, demotion, suspension, or the like, is not a materially adverse employment action.”
Creggett v. Jefferson Cnty. Bd. of Educ., 

 (6th Cir. 2012); see also Presley
v. Ohio Dep’t of Rehab. & Correction, 

 (6th Cir. 2017) (holding that
documented counseling and a one-day paid suspension was not a materially adverse employment
action). Here, McNeal was disciplined in several ways that likely do not meet the definition of
an “adverse employment action,” Mitchell, 389 F.3d at 182, including “documented counseling,”
an “oral reprimand,” and a “written reprimand.” R. 27-7, PID 1002. When considering the facts
in the light most favorable to McNeal, none of these incidents is actionable on its own in a
disparate-treatment claim.

       Apart from the discipline, McNeal cites the scrutiny he faced more generally, including
the fact that the Department closely monitored and thoroughly investigated him. For example,
McNeal cites the fact that, during its investigation, the Department audited his camera and
 No. 23-3180                         McNeal v. City of Blue Ash, Ohio                                   Page 20


microphone footage for the entire year—a level of scrutiny no other officer had experienced. We
focus on the harassing effect of these incidents to assess whether the ongoing monitoring created
a climate of hostility in the aggregate (and combined with other actions), not whether each
incident alone changed McNeal’s employment status. Therefore, McNeal’s evidence of higher
and disproportionate scrutiny may be used to support his hostile-work-environment claim.16

        In sum, except for the unpaid suspensions and termination that McNeal conceded do not
apply, McNeal’s other evidence may be used to support his hostile-work-environment claim.

                                          C. Severe and Pervasive

        Because hostile-work-environment claims arise out of the same statutory language as
disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show
“significant” harm applies to both types of claims. Muldrow, 

; Crawford, 

 (“The theoretical rationale for the doctrine is that sufficiently abusive harassment
adversely affects a ‘term, condition, or privilege’ of employment within the meaning of Title
VII.” (quoting Ellison v. Brady, 

 (9th Cir. 1991))). Instead, the employer’s
discriminatory action—or, as is the case here, the work environment—needs to produce “some
harm respecting an identifiable term or condition of employment.” Muldrow, 

.
Thus, when we consider whether a hostile-work environment was severe or pervasive enough to
violate Title VII, we effectively ask whether it left an employee “worse off respecting
employment terms or conditions.” 

 And “[b]ecause we rely on Title VII case law in the
ADEA context,” we apply the same standard here. Milczak, 

.

        “Whether harassment is sufficiently severe or pervasive to create an abusive work
environment is ‘quintessentially a question of fact.’”                Crawford, 96 F.3d at 835–36.              In
determining whether McNeal’s claim survives summary judgment, we consider the totality of the
circumstances, including the “frequency of the discriminatory conduct; its severity; whether it is

        16McNeal also alleged that his supervisors avoided giving him tasks and reminders in person and
communicated with him via email instead. Appellant’s Supp. Brief at 6. McNeal alleges that this was done
intentionally because his supervisors knew he would be out on patrol for most of his shift and would be unlikely to
see their messages in a timely manner. 

 McNeal’s email-related argument is new, and Appellees had no
reasonable opportunity to respond to it. See discussion infra note 14. Accordingly, we do not consider this
argument in our analysis.
 No. 23-3180                    McNeal v. City of Blue Ash, Ohio                         Page 21


physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Faragher v. City of Boca Raton, 

, 787–88 (1998) (quoting Harris v. Forklift Sys., Inc., 

 (1993)). McNeal is
not required to show that the harassment “seriously affect[ed] [his] psychological well being” or
caused him to “suffe[r] injury”—only that the environment “would reasonably be perceived . . .
as hostile or abusive.”    Harris, 

 (alteration in original) (citation omitted).
Importantly, McNeal does not need to show that “each incident of harassment standing alone is
sufficient to sustain the cause of action,” but that the incidents, taken together, make out such a
case. Williams v. Gen. Motors Corp., 

 (6th Cir. 1999). 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, 

 (6th Cir. 2006) (describing that assigning employees
“extra and demeaning duties” could provide a factual basis for a hostile-work-environment
 No. 23-3180                        McNeal v. City of Blue Ash, Ohio                    Page 22


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, 

(“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, 

 (quoting Burns v. McGregor Elec. Indus., Inc., 

 (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. 

 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. 

        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
 No. 23-3180                         McNeal v. City of Blue Ash, Ohio                                   Page 23


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, 

 (quoting Oncale, 

).

        When considering the evidence in McNeal’s favor, a reasonable jury could conclude that
the conditions of McNeal’s employment were altered. Because McNeal has demonstrated a
genuine dispute of material fact as to the existence of an age-based hostile work environment, we
reverse the district court’s grant of summary judgment on this claim.

                                                    V. Conclusion

        For the reasons stated, we AFFIRM the district court’s order granting summary judgment
to Defendants on McNeal’s disparate-treatment-termination claim and REVERSE the grant of
summary judgment to Blue Ash on his claim of a hostile work environment. 17




        17We note that the district court held, and McNeal did not dispute, that Waltz and Noel could not be held
liable in their individual capacities under the ADEA. Additionally, the district court dismissed the claims against
Waltz and Noel in their official capacities because they were duplicative of the claims against Blue Ash. R. 63,
PID 3886 (“Where the entity is named as a defendant, an official-capacity claim is redundant.” (quoting Foster
v. Michigan, 

 (6th Cir. 2014))). McNeal did not appeal this portion of the district court’s
ruling. Thus, the hostile-work-environment claim may proceed against Blue Ash only.