[Cite as Peters v. Highland Hills, 2024-Ohio-2366.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
GEORGE PETERS, :
Plaintiff-Appellant, : No. 113372 v.
VILLAGE OF HIGHLAND HILLS, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 20, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-970911
Appearances:
Mark P. Herron, for appellant.
Baker | Dublikar, Gregory A. Beck, and Andrea K. Ziarko, for appellee.
MICHAEL JOHN RYAN, J.:
Plaintiff-appellant, George Peters, appeals from the trial court’s
October 2023 judgment granting the motion for summary judgment of defendant- appellee, the Village of Highland Hills. After a thorough review of the facts and
pertinent law, we affirm.
Procedural History
Peters filed this age-discrimination case in November 2022, after he
was not awarded a promotion to chief of police of the village’s police department.
The village filed an answer in which it generally denied Peters’s allegation and
asserted several defenses. The parties engaged in discovery and after the completion
thereof, the village filed a motion for summary judgment; Peters opposed the
motion. In an October 2023 judgment, the trial court found that there were no
genuine issues of material fact to be litigated and granted the village’s motion for
summary judgment. Peters appeals and raises the following sole assignment of
error for our review:
I. The trial court erred in granting the village’s motion for summary judgment on Mr. Peters’ claim for age discrimination because there are genuine issues of material fact as to whether the village’s decision to not promote Mr. Peters to chief of police was because of age.
Factual Background and Summary Judgment Motion
The village promoted Lieutenant Markrendell Campbell to the chief
of police position. It is undisputed that Campbell is substantially younger (under
the age of 40 at the time of the promotion) than Peters; Peters is (and was at the
relevant time) over 40 years old.
Discovery in this case involved testimony (via deposition and/or
affidavits) from the following individuals: (1) Michael Booker, the mayor of Highland Hills, who was appointed in 2018, and who was the appointing authority
for all department heads, including chief of police;1 (2) plaintiff-appellant Peters;
and (3) Campbell, who received the appointment as the chief of police. The village
relied on this evidence in its motion for summary judgment.
Village’s Position
According to Mayor Booker, when he was appointed mayor of the
village in 2018, employees in the police and fire departments were suffering from
low morale and administrative changes were necessary. Mayor Booker hired Dalton
Preston, a 28-year veteran of the Cleveland Division of Police. Initially, Preston
served as a lieutenant; the mayor later appointed him to serve as the village’s chief
of police.
Chief Preston hired Peters for a part-time position with the village’s
police department after Peters retired from the Cleveland Division of Police in 2018.
One of the goals in hiring Peters was that he would serve as a mentor for the officers
on the village’s force. The village held the police commission for Peters, which
enabled Peters to continue to function as a law enforcement official and a private
security officer in Ohio.
Mayor Booker testified that Chief Preston was content on being a
“part-time” administrator and delegated much of his responsibilities to Lieutenant
Campbell. According to Booker, the police department was not progressing in the
1 Prior to becoming the village’s mayor, Booker had a 27-year career with the United States Marine Corps, during which he worked in human resources and employee recruitment capacities. manner he envisioned under Chief Preston’s leadership and, thus, after two years,
Preston elected to resign.
Four or five people, including Peters and Campbell, applied for the
chief position. Peters contends that he was not interviewed for the position; Booker
contends that Peters was interviewed. Peters does admit that he met with Booker in
private on two separate occasions to discuss the position; however, Peters contends
that the meetings were on his initiative, not the mayor’s.
Mayor Booker testified that Peters told him that he wanted to end his
career — which he envisioned happening in approximately two years — as a police
chief. According to the mayor, he was looking for an individual to serve as chief who
was willing to commit more than a couple of years; rather, he was looking for
someone who would “fight through the tough times that a small community has”
and commit to being on the job for a while. Along with Peters’s desire to retire in
the near future, the mayor did not think Peters best filled the requirements he was
looking for.
Specifically, Mayor Booker was interested in building community
within the force and, according to him, most of the officers on the force had never
even met Peters or knew who he was. In the preceding two years that Peters had
been on the force, he had logged an approximate total 47 hours; the mayor testified
that most of that time was due to “mandatory appearances, range time, and training
that only benefitted himself.” Regarding Campbell, he began working for the village in 2010 as an
auxiliary officer. Campbell had a brief resignation from the village before he came
back full-time in 2016. When he came back in 2016, Campbell started as a patrol
officer and advanced first to sergeant and then to lieutenant. Mayor Booker testified
that Campbell had the respect of the other officers, the village council, and the
community at large.
Mayor Booker promoted Campbell to chief of police. The mayor
testified that the promotion had nothing to do with age. Rather, the mayor
maintained that he believed Campbell best fit with his goals for the police force.
Peters’s Position
In opposition to the village’s motion for summary judgment, Peters
contended that (1) he (and two of the other applicants) had significantly more law
enforcement experience than Campbell, (2) Campbell falsified his resume, (3)
Campbell had significant disciplinary history while on the village’s police force, and
(4) Mayor Booker impermissibly “pre-selected” Campbell.
Qualifications
Peters submitted his own resume, as well as the resumes of two other
applicants who were over the age of 40. According to Peters’s resume, at the time
he applied for the chief position, he had almost 30 years of law enforcement. Peters’s
law enforcement experience included “high profile assignments,” such as security
detail for the 2012 Presidential Inauguration, 2014 Gay Games, and the 2016
Republican National Convention. According to the resumes of the other two applicants Peters
submitted, one had over 20 years of law enforcement experience, including in
leadership positions, and the other had 27 years of law enforcement experience.
Peters contended that Lieutenant Campbell’s resume was “strikingly
thin” on experience, with only 12 years of law enforcement experience. Peters
contended that Campbell’s responsibilities with the village primarily related to
administrative tasks such as preparing reports of departmental activity, scheduling,
and managing the department’s budget. And, according to Peters, Campbell’s prior
experience primarily related to investigating traffic accidents, property crimes,
identity theft, and, in one prior position, functioning more like a security guard than
a police officer.
Further, Peters contended that Campbell falsified his resume.
Specifically, Campbell’s resume stated that he served as a lieutenant for the village
since 2010, but Campbell testified at his deposition that he had served as a
lieutenant for only a few months prior to his appointment as chief of police, that he
had been appointed lieutenant by Mayor Booker, and that he had actually served as
a sergeant for approximately two years prior to serving as a lieutenant. Peters
contended that because Mayor Booker did not take office until 2018, Mayor Booker
could not have hired Campbell as a lieutenant in 2010. Peters noted that Campbell’s
resume did not state that he ever served as a sergeant for the village.
Citing another alleged discrepancy, Peters noted that Campbell
testified at his deposition that he resigned his employment with the village at the request of the then-chief of police for approximately seven months during which he
worked part-time for the East Cleveland Division of Police, but Campbell’s resume
did not reference this gap in service, the forced resignation, or his employment with
the East Cleveland police.
Peters contended that “no explanation is provided by the Village
regarding the discrepancies between Mr. Campbell’s resume and his sworn
deposition testimony on this critical issue pertaining to his experience and
qualifications.”
Campbell’s Past Discipline Issues
It is undisputed that Campbell was disciplined by the village for past
incidents. One such incident that Peters mentioned in his opposition to the village’s
summary judgment motion, which Campbell called “horseplay,” involved Campbell
participating in a game of “quick draw” with loaded guns inside the village police
station and in the presence of other officers. Campbell acknowledged that the safety
was off on his gun at the time of the incident and that his gun could have discharged.
Peters contended that this incident demonstrated “a clear lack of sound judgment,
integrity, and tact” all of which were requirements for the chief of police position.
Campbell also had been disciplined for tardiness and for improperly
having his fiancee in his patrol car. Further, Campbell admitted to an incident where
he wrote “don’t shoot” on his palms and posted a picture of it on Facebook; the
incident led to his previously mentioned requested resignation. Alleged Preselection of Campbell
Peters contended that reasonable minds could find that the village’s
application process was a “charade,” because the evidence tended to demonstrated
that Mayor Booker had preselected Campbell to be the chief. Peters relies on
Campbell’s deposition testimony, wherein he stated that he did not have any interest
in serving as chief of police, and in fact, was planning on leaving the village.
However, he was approached by Mayor Booker in September 2021, prior to the
resignation of the former Chief Preston and told by Mayor Booker that he would be
offered the chief position if he stayed with the village.
The Village’s Reply
The village filed a reply brief to Peters’s brief in opposition. In its
reply, the village maintained that Peters’s mention of an “alleged discrepancy in
Campbell’s resume” was a “red herring.” The village explained as follows:
“Campbell was a Lieutenant when he submitted the resume, and because Campbell
had been working for the Village since 2010 (minus a brief resignation), full time
since 2016, the mayor and Council were well aware of what his positions were.” The
village therefore maintained that there was “no dispute that at the time of Chief
Preston’s resignation, Campbell was the senior officer in the department.” The
village acknowledged that Peters may have had more law enforcement experience,
but maintained that “Mayor Booker simply felt that, based upon his day-to-day
interaction with Campbell and his understanding of what types of leadership both candidates would bring to the table, the choice was clear Campbell should be
promoted to police chief.”
Responding to Peters’s contention about Campbell’s disciplinary
history, the village stated that Mayor Brooks was unaware of it at the time he hired
Campbell as chief because the history was not in Campbell’s personnel file, but even
had the mayor known, he would have made the same recommendation to village
council because the mayor did not feel Campbell’s prior actions reflected on his
ability to lead the police department as chief. The village further noted that Peters
failed to mention his own past disciplinary incidents.
Regarding Peters’s preselection claim, the village contended that the
village’s council had to approve the mayor’s selection and there was no evidence that
the council had preselected Campbell. The village further contended that any
evidence that Mayor Booker wanted the village council to hire Campbell was based
on Campbell’s performance within the village as compared to Peters’s performance.
Trial Court’s Judgment
Construing the evidence in a light most favorable to Peters, the trial
court found that “reasonable minds can come but to one conclusion, that there are
no genuine issues of material fact and that defendant village of Highland Hills is
entitled to judgment as a matter of law.” Law and Analysis
Standard of Review
Civ.R. 56(C) provides that summary judgment is appropriate when
(1) there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) after construing the evidence most favorably
for the party against whom the motion is made, reasonable minds can only reach a
conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club,
Inc., 82 Ohio St.3d 367, 369-370 (1998); Temple v. Wean United, Inc., 50 Ohio St.2d
317, 327 (1977). We review the trial court’s judgment de novo, using the same
standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). Accordingly, we stand in the shoes of the trial court
and conduct an independent review of the record.
Age Discrimination; R.C. 4112.14; Burden of Proof
R.C. 4112.14(A) provides that “[n]o employer shall discriminate in
any job opening against any applicant . . . aged forty or older who is physically able
to perform the duties and otherwise meets the established requirements of the job
and laws pertaining to the relationship between employer and employee.”
Although we are not bound to apply federal court interpretation of
federal statutes to analogous Ohio statutes, Ohio state courts have looked to federal
case law when considering claims of employment discrimination brought under the
Ohio Revised Code. Coryell v. Bank One Trust Co. N.A., 2004-Ohio-723, ¶ 15. See
also Campbell v. PMI Food Equip. Group, Inc., 509 F.3d 776, 785 (6th Cir. 2007); Frick v. Potash of Sask, Inc., 2010-Ohio-4292, ¶ 16 (3d Dist.) (“In interpreting the
Ohio anti-discrimination statutes, Ohio courts have consistently looked to federal
cases interpreting federal civil rights and age-discrimination legislation in addition
to Ohio case law.”).
Peters and the village disagree about the requisite burden of proof for
an age-discrimination claim. Peters contends that the traditional burden-shifting
framework set forth by the United States Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and adopted by the Ohio Supreme Court in
Barker v. Scovill, Inc., 6 Ohio St.3d 146 (1983), has been “effectively done away
with” by the Supreme Court’s decision in Bostock v. Clayton Cty., 590 U.S.__, 140
S. Ct. 1731 (2020). We disagree.
Bostock addressed Title VII of the Civil Rights Act of 1964, which
prohibits employment discrimination based on race, color, religion, sex, and
national origin. The Bostock Court clarified that “[a]n employer who fires an
individual for being homosexual or transgender fires that person for traits or actions
it would not have questioned in members of a different sex.” Bostock at 1737.
McDonnell Douglas, on the other hand, dealt with the Age Discrimination in
Employment Act (“ADEA”). The Sixth Circuit has found that Bostock has not
changed the framework of an ADEA claim (the federal counterpart to a R.C. 4112.14
claim.) Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021). We agree
that the standard set forth in McDonnell Douglas still applies. The McDonnell Douglas analysis involves a three-step procedure that
allocates the shifting burdens of production of evidence to the parties. Under this
analysis, the employee must first establish a prima facie case of age discrimination.
Next, the burden of production shifts to the employer to state some legitimate non-
discriminatory reasons for its action. Finally, the burden shifts back to the employee
to show that the employer’s stated reasons were a pretext for age discrimination.
Wang v. Goodyear Tire & Rubber Co., 68 Ohio App.3d 13, 16 (9th Dist. 1990), citing
McDonnell Douglas and Barker.
Prima Facie Case Established
A prima facie claim for age discrimination may be proven by direct or
circumstantial evidence. Vickers v. Wren Indus., 2005-Ohio-3656, ¶ 25 (2d Dist.).
Peters has not presented any direct evidence of age discrimination. Absent direct
evidence of age discrimination, a plaintiff seeking to establish a prima facie case
must show that he or she (1) is a member of a protected class, (2) was subject to an
adverse employment decision, (3) is qualified for the position, and (4) was replaced
by a substantially younger person or a similarly situated nonprotected employee was
treated more favorably. Mauzy v. Kelly Servs., 75 Ohio St.3d 578, 582 (1996).
The village contends that Peters failed to establish a prima facie case
of age discrimination. It is undisputed that Peters was over 40 and Campbell was
significantly younger than Peters. Peters was subject to an adverse employment
decision — he did not get the chief of police position. The only element that was
potentially debatable was whether Peters was qualified for the chief position. The village contends that he was not because he was “a part-time officer that had nearly
no experience policing in Highland Hills.” Peters, on the other hand, contends that
his nearly 30-year career in law enforcement qualified him for the position.
Qualification is reviewed objectively. “The only relevant inquiry at
the prima facie stage of the analysis is whether the employee was objectively
qualified for the position, taking into consideration the employee’s education,
experience, and skills.” (Emphasis omitted.) Leib v. Famous Distrib., 2006 U.S.
Dist. LEXIS 5802, 30 (S.D. Ohio Feb. 15, 2006), citing Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 575-576 (6th Cir. 2003). At the prima facie stage,
“‘[a] court must evaluate whether a plaintiff established his qualifications
independent of the employer’s proffered nondiscriminatory reasons for discharge.’”
Erwin v. Morrow, 2019 U.S. Dist. LEXIS 58288 (S.D. Ohio Apr. 4, 2019), quoting
Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 585 (6th Cir. 2002). “[A] court
cannot conflate the prima facie analysis with the second stage of the McDonnell
Douglas inquiry.” Leib at id., citing Wexler at id. Instead, “the focus at this point
should be on Plaintiff’s objective qualifications, such as his [or her] experience in the
industry and demonstrated possession of the required general skills.” Chitwood v.
Dunbar Armored, Inc., 267 F.Supp.2d 751, 756 (S.D. Ohio 2003), citing Wexler at
id. “The prima facie burden of showing that a plaintiff is qualified can therefore be
met by presenting credible evidence that his or her qualifications are at least
equivalent to the minimum objective criteria required for employment in the
relevant field.” Wexler at id.; see also Pattison v. W.W. Grainger, Inc., 2010-Ohio- 2484, ¶ 28 (8th Dist.), quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651,
657 (6th Cir. 2000) (“‘A court must examine the plaintiff’s evidence independent of
the nondiscriminatory reason “produced” by the defense as its reason for
terminating plaintiff.’”).
Peters had almost 30 years of law enforcement experience, which
included serving as a detective and lieutenant platoon commander. Additionally,
Peters had supervisory positions for several high-profile events. Upon an objective
review of the evidence Peters presented, he was qualified for the chief of police
position. Peters therefore met all the requirements for a prima facie showing of age
discrimination. Thus, we consider the second step in the burden-shifting framework
— whether the village offered a legitimate nondiscriminatory reason for promoting
Campbell.
Legitimate, Nondiscriminatory Reason for the Village’s Selection
If a plaintiff establishes a prima facie case of discrimination, the
second step of the McDonnell Douglas framework shifts the burden to the employer
“to rebut the presumption of discrimination by presenting evidence of some
legitimate, nondiscriminatory reason for its action.” Kenner v. Grant/Riverside
Med. Care Found., 2017-Ohio-1349, ¶ 28 (10th Dist.). This is a burden of
production, not persuasion, and is satisfied if the employer “‘introduce[s] evidence
which taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.’” Id., quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 509 (1993). “If the employer articulates a legitimate, nondiscriminatory reason, ‘the presumption created by the prima facie case drops
from the case because the employer’s evidence has rebutted the presumption of
discrimination.’” Id., quoting Williams v. Akron, 2005-Ohio-6268, ¶ 12. “However,
if the employer fails to meet its burden of production and ‘reasonable minds could
differ as to whether a preponderance of the evidence establishes the facts of a prima
facie case,’ then the question of whether the employer discriminated must be
decided by the fact finder.” Williams at ¶ 13, quoting St. Mary’s at 509-510.
The village maintains that Campbell, and not Peters, was promoted
to the chief position because Campbell “was the best candidate for the job.” Peters
contends that “the ‘best fit’ justification for an employment decision is highly suspect
and generally constitutes a ‘non-reason’ that is insufficient as a matter of law to
satisfy the employer’s obligation to proffer evidence is legitimate non-
discriminatory reason for its action.” We might be inclined to agree with Peters if
the village merely stated that Campbell was the “best fit” without explanation. But
the village explained why it found Campbell to be the “best fit.”
The village cites that, at the time of Chief Preston’s resignation,
Campbell was the highest-ranking officer in village’s police department, he was
appointed acting chief, and ultimately selected for the position “based on his
leadership skills and knowledge of how the Highland Hills Police Department
worked.” In reaching its decision, the village noted that Campbell “would encounter
the mayor and discuss policing philosophy and community engagement.” In
contrast, according to the village, Peters “did not know and/or interact with the other police officers as he had not worked any shift in his two years with the
department. He simply kept his police commission active, and even told the mayor
he wanted to work as a part-time Chief for two years before retiring, again.”
On this record, the village offered a legitimate, nondiscriminatory
reason for its selection of Campbell. The burden then shifted to Peters to show that
the village’s reasons were pretextual.
No Pretext
To demonstrate pretext, a plaintiff must ultimately prove both that
the employer’s stated reason for the adverse employment decision “was not the real
reason for its action, and that the employer’s real reason” was discrimination.
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015). At summary
judgment, however, a plaintiff need only produce evidence that would allow a jury
to find that the employer’s stated reason “is unworthy of credence.” Reeves v.
Sanderson Plumbing Prods. Inc., 530 U.S. 133, 147 (2000); see also Miles v. S. Cent.
Hum. Res. Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020). To that end, a plaintiff
can typically create a genuine issue of fact by producing evidence that the employer’s
stated reason (1) had no basis in fact, (2) did not actually motivate the employer’s
actions, or (3) was insufficient to motivate the employer’s actions. Briggs v. Univ.
of Cincinnati, 11 F.4th 498, 515 (6th Cir. 2021).
Peters contends that the village’s offered justification — that
Campbell was the “best fit” — “had no basis in fact because the Village did not
present any facts admissible in evidence to support it.” We disagree. Mayor Booker testified at his deposition as to why he believed Campbell was the “best fit.” At the
time of the former chief’s, Preston, resignation, morale in the department was low.
Mayor Booker sought to boost the morale. At the time, Campbell was the highest-
ranking officer in village’s police department and was appointed acting chief. Mayor
Booker testified that Campbell was ultimately selected for the position “based on his
leadership skills and knowledge of how the Highland Hills Police Department
worked.” In reaching its decision, the village noted that Campbell “would encounter
the mayor and discuss policing philosophy and community engagement.” Further,
the other officers on the force knew and respected Campbell.
In finding no pretext, we have considered Peters’s preselection claim.
Even if the village did preselect Campbell, there simply is no evidence that it did so
because of his age. “[W]hile preselection may establish that an employee was
‘unfairly treated, it does not by itself prove . . . discrimination.’” Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir. 2005), quoting Blue
v. United States Dept. of Army, 914 F.2d 525, 541 (4th Cir. 1990), citing Casillas v.
United States Navy, 735 F.2d 338, 344 (9th Cir. 1984).
In sum, the village articulated legitimate, nondiscriminatory reasons
for not promoting Peters. In turn, Peters did not present sufficient evidence to
establish that the village’s stated reasons were pretext for age discrimination.
Consequently, we overrule Peters’s sole assignment of error and affirm the trial
court’s decision to enter summary judgment in favor of the village.
Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
KATHLEEN ANN KEOUGH, A.J., and SEAN C. GALLAGHER, J., CONCUR