Rosecrans v. Village of Wellington

Filing 33

Opinion and Order. Defendant's Motion for Summary Judgment (Related doc # 26 ) is granted. Judge Christopher A. Boyko on 3/9/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANIEL C. ROSECRANS,
Plaintiff,
Vs.
VILLAGE OF WELLINGTON,
Defendant.

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CASE NO. 1:15CV128
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter comes before the Court upon the Motion for Summary Judgment of
Defendant Wellington (ECF # 26). For the following reasons, the Court grants Wellington’s
Motion for Summary Judgment.
I. BACKGROUND
Plaintiff, Daniel C. Rosecrans, (“Rosecrans”) has been a part time police officer since
1991. He alleges that he was discriminated against on the basis of age when Defendant,
Village of Wellington, (“Wellington”) chose not to appoint him to a position of a full-time
police officer in June 2014. Rosecrans alleges he was passed over for a promotion to the fulltime police officer position in favor of Josh Poling (“Poling”), a younger officer he supervised

while working at the Lorain County MetroParks (“MetroParks”). At the time he was passed
over, Rosecrans was forty-seven years old, while Poling was thirty-one years old. The
candidates were reviewed by the Village of Wellington Police Committee, which then
recommended a candidate to council. According to Wellington, then Councilman Schneider
(“Schneider”) had concerns regarding Rosecrans’ suitability for the position because of
Rosecrans’ disciplinary history. Indeed, during his employment at the MetroParks, Rosecrans
was subjected to a Last Chance Agreement as a result of erasing data on the hard drive from
his work computer. According to Wellington, Rosecrans then resigned, due to his demotion;
according to Rosecrans, because he was required to travel a further distance to work and
changes in other responsibilities. Despite having been employed by the MetroParks for over
twenty years, Rosecrans’ resume failed to list the MetroParks as an employer. Thus,
according to Wellington, there were concerns that Rosecrans failed to even identify the
MetroParks on his application materials in light of the general knowledge of the situation
surrounding Rosecrans’ resignation. Rosecrans alleges that he wished to list only his most
current employment.
After reviewing the applications, it was determined that Poling would be
recommended for the position to the Village Council, which approved the recommendation.
Rosecrans states that Interim Chief of Police Barrett (“Chief Barrett”) advised him that he did
not get the position due to a situation involving a School Resource Officer position, the events
occurring at the MetroParks and “other problems” that were not discussed. With respect to
the School Resource Officer position, Rosecrans stated that the Wellington Board of
Education created a position and he was approached by the school superintendent about the

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position. Rosecrans believes he was subsequently retaliated against because his appointment
would have resulted in a loss of earnings by other officers. Rosecrans also asserts that a
retired officer he worked with for several years affirmed that Rosecrans was more qualified
and that he had a conversation with Defendant Barbara O’Keefe, former Mayor of Wellington
at the time of the incidents in question, where she raised concerns about the ability of
Rosecrans to pass a physical examination required for a full-time patrol officer position.
However, Rosecrans has not brought a claim for disability discrimination.
Rosecrans generally alleges that he was not chosen for the full-time Wellington police
officer position due to his age but admits that no one at the Village told him that the decision
was based on age. To the contrary, Chief Barrett told Rosecrans he was a valuable asset to
the police department and felt that other opportunities may arise for him. Rosecrans remained
employed at the Village in his part-time capacity until his resignation from that position in the
summer of 2015.
On September 28, 2014, Rosecrans filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging he was denied promotion from
part-time to full-time police officer due to his age. Rosecrans’s EEOC Charge alleged this
action violated the Age Discrimination in Employment Act (“ADEA”), the Americans with
Disabilities Act (“ADA”) and constituted retaliation under these statutes. Rosecrans obtained
a right to sue letter from the EEOC and filed his Complaint in this Court, alleging Age
Discrimination in violation of theADEA (Count I) and Ohio Revised Code (“O.R.C.”)
Sections 4112.02, 4112.14 (Counts II & III) and Hostile Work Environment under § 4112 and
§ 4112.99 (Count IV) and Retaliation under O.R.C. §§ 4112.02 and 4112.99 (Count V).

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Rosecrans filed the within suit against the Village and Mayor O’Keefe. Following briefing on
a Motion to Dismiss, the Court dismissed all claims against O’Keefe as well as all state law
claims. The sole remaining claim is a claim against Wellington under the ADEA (Count I)
based on the decision not to appoint Rosecrans to the full-time police officer position in June
of 2014.
II. LAW AND ANALYSIS
A) Standard of Review
Summary Judgment should be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” See Fed. R.Civ. P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. V. Espy, 39 F. 3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Matsushita Elec. Indus. Co. V. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but most come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing dairy, 39 F.3d at
1347.
The “mere existence of some alleged factual dispute between the parties will not

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defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v Liberty Lobby, Inc. 477 U.S. 242,
247-48 (1986) (emphasis in original); accord Leadbetter v Gilley, 385 F. 3d 683, 689-90 (6th
Cir. 2003). A fact is only material if its resolution “might affect the outcome of the suit under
governing law.” Anderson, 477 U.S. at 248.
The Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass’n., 78 F. 3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F. 2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
Anderson, 477 U.S. at 249-50; and if the nonmoving party fails to make the necessary
showing on an element upon which it has the burden of proof, the moving party is entitled to
summary judgment. Celotex, 477 U.S. at 323. Whether summary judgment is appropriate
depends upon “whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a mater of law.” Amway
Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F. 3d 386, 390 (6th Cir. 2003) (quoting
Anderson, 477 U.S. at 251-52).
B) Direct evidence of age discrimination
According to Wellington, Rosecrans has no direct evidence of age discrimination.
Direct evidence is “evidence [that], if believed, requires the conclusion that age was the “but
for” cause of the employment decision...the inquiry includes both a predisposition to
discrimination and that the employer acted on that predisposition.” Scheick v. Tecumseh
Public Schools, 766 F.3d 523, 530 (6th Cir. 2014). Direct evidence “proves the existence of a

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fact without requiring any inference.” Id. Wellington argues that Rosecrans admits that no
one at the Village stated that his age was related to the decision not to appoint him to the fulltime position. Rosecrans also denies having spoken with any members of the Police
Committee or Village Council with respect to the hiring decision and does not know what
factors were considered in making the appointment decision. Wellington notes that
Rosecrans alleged that Chief Barrett identified three reasons why Rosecrans was not hired,
including issues surrounding the School Resource Officer position, Rosecrans’s discipline
with Metroparks and “other issues.” Therefore, according to Wellington, Rosecrans has
presented no direct evidence of age discrimination.
According to Rosecrans, direct evidence requires the conclusion that discrimination
was at least a motivating factor in the actions of the employer and can be shown by an
employer’s statement showing discriminatory motive. Wexler v. White Fine Furniture, Inc.
(6th Cir. 2003), 217 F.3d 564, 570. Rosecrans argues that Kobasher, another police officer,
alleges that he had a conversation with O’Keefe prior to June 2014, where she raised concerns
about the ability of Rosecrans to pass a physical examination. Rosecrans contends that this
statement was made by the person making the employment decision in this case and that it
can be interpreted as a concern for Rosecrans’ physical condition due to his age.
Wellington’s Reply in support of its Motion argues that there is no evidence that the
alleged statement was made in connection with the decision on the full-time appointment.
Indeed, the only information offered as to the timing of the discussion is that it occurred
“prior to June 2014" but there are no other details about the context of this discussion.
Wellington correctly counters that “statements by nondecisionmakers, or statements by

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decisionmakers unrelated to the decisional process itself [cannot] suffice to satisfy the
plaintiff’s burden ... of demonstrating animus.” Bush v. Dictaphone Corp., 161 F.3d 363, 369
(6th Cir. 1998). Thus, according to Wellington, because there is no evidence linking the
alleged discussion to the decision making process, this alleged discussion does not constitute
direct evidence of age discrimination. Further, Wellington insists that Rosecrans states in his
Affidavit that he “interpreted” the alleged comment as an ageist remark. Moreover, O’Keefe
did not mention age nor used terms or euphemisms that are synonymous with age.
Wellington argues that comments such as “people over fifty take longer to heal” or that a
company should hire or wanted to hire young aggressive people have been found too
ambiguous to constitute direct evidence of age discrimination. Gibbs v. Voith Indus. Services,
Inc., 60 F.Supp. 3d 780, 792 (E.D. Mich. 2014); Hart v. Ridge Tool Co., 544 F.Supp.2d 634,
638 (N.D.Ohio 2008). According to Wellington, a comment regarding the ability to pass a
physical examination is just as, if not more, ambiguous than those previously held not to
constitute direct evidence of age discrimination.
Age-discrimination claims can be proven in one of two ways: with direct evidence of
discrimination or by establishing a prima facie case of discrimination. Direct evidence is
evidence that proves the existence of a fact without requiring any inferences. Kozlevcar v.
Tom Ahl Buick, Inc., No 3:05CV07483, 2007 WL 2344782 at *5 (N.D. Ohio Aug 15, 2007)
citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078 (6th Cir. 1994). This
evidence cannot be based on vague, ambiguous, or isolated remarks. Kozlevcar at *5.
Instead, the evidence must require the conclusion that unlawful discrimination was at least a
motivating factor in the employer's actions. Id. citing Jacklyn v. Schering-Plough Healthcare

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Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Here, Rosecrans alleges that
Kobasher’s declaration regarding O’Keefe’s statement about the inability of Roscrans to pass
a physical examination is direct evidence of age discrimination. However, such statement,
out of context, is too ambiguous and isolated because there is no inherent link to age. Further,
as Defendant correctly argues, “statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself [cannot] suffice to satisfy the
plaintiff’s burden ... of demonstrating animus.” Bush, at 369. Rosecrans has not
demonstrated that the statement was made in connection with the decision not to hire
Rosecrans. Indeed, there is no evidence regarding the context and the timing of the
discussion between O’Keefe and Kobasher, except for “prior to June 2014," which is vague.
Therefore, Kobasher’s declaration is not direct evidence of age discrimination.
C) Indirect evidence of age discrimination
As Wellington correctly asserts, Rosecrans may prove discrimination by
circumstantial evidence, showing that: (1) he was at least forty years old at the time of the
alleged discrimination, (2) he was subject to an adverse employment action, (3) he was
otherwise qualified for the position, and (4) he was replaced by a younger worker.
Weatherby v. Federal Express, 454 F.Appx. 480, 489 (6th Cir. 2012). If a plaintiff makes this
showing, then the burden of proof shifts to the defendant to articulate a non-discriminatory
reason for its action. Marsh v. E. Associated Estates Realty Corp., 521 F.Appx. 460, 466 (6th
Cir. 2013). However, the burden of persuasion remains on the ADEA plaintiff to demonstrate
that age was the “but-for” cause of the employer’s adverse action. Geiger v. Tower
Automotive, 579 F.3d 614, 620 (6th Cir. 2009). It is undisputed that Rosecrans was over forty
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years old at the time of the decision, that Rosecrans was likely qualified for that position and
was not appointed to that position and that Officer Poling was younger than Rosecrans.
However, according to Wellington, Rosecrans is unable to show that his age was the “but-for”
reason. Wellington contends that all other full-time police officers at that time were over
forty years of age and that the interim police chief, who was appointed during this time
period, was over forty years of age. Also, the council members who voted on the
recommendation were over forty years of age. Further, Wellington argues that Rosecrans
believes there were multiple reasons why he was not appointed i.e., that he was retaliated
against for being approached for the School Resource Officer position and that he was
perceived as unable to pass the physical examination. Therefore, according to Wellington,
these allegations present a mixed motive claim because Rosecrans alleges that a protected
classification (age) was a motivating factor for the employment decision, even though other
factors also motivated the decision. 42 U.S.C. §2000e-2(m). Wellington asserts that a
plaintiff alleging age discrimination cannot proceed on a mixed motive theory but rather,
must show that he would have received the position had his age not been a consideration.
Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174-175 (2009). Therefore, Wellington
contends that because Rosecrans identifies several factors, he cannot show that consideration
of his age was the “but-for” cause that he was not appointed.
Rosecrans argues that he has submitted a declaration, along with the Memorandum in
Opposition, unequivocally stating that Poling was chosen over him based on age. Further,
Rosecrans contends that O’Keefe and Schneider, who attended the Police Committee meeting
to discuss staffing issues, did not reference any concerns about the School Resource Officer

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Position with Wellington. Also, Rosecrans insists that Chief Rollins, who would have been
the individual angered regarding the School Resource Officer position, was retired at the time
of June 2014. Therefore, according to Rosecrans, the argument that this case presents a
mixed-motive question or that factors other than age motivated the decision not to hire
Rosecrans are inaccurate.
Wellington counters in its Reply in Support of its Motion that even though Rosecrans
now alleges that he believes age was the sole reason for the decision, “the ultimate burden of
persuasion in an age discrimination case always remains with Plaintiff.” Gross v. FBL.
According to Wellington, Rosecrans admitted during his deposition that there were other
factors than age and cannot now attempt to create a genuine issue of fact by contracting his
deposition testimony. Aerel, S.R.L. PCC Airfoils, LLC., 448 F.3d 899, 907 (6th Cir. 2006).
Further, Wellington counters that Rosecrans, in his deposition, not only testified that Chief
Rollins, now retired, was the individual concerned about the School Resource Officer
position, but also that Council members Maurer, Denes and Schneider retaliated against him
based on an alleged dispute surrounding the selection of the School Resource Officer
position. Therefore, according to Wellington, Rosecrans is only attempting to maintain an
impermissible mixed motive case.
Here, it is undisputed that Rosecrans was over forty years old at the time of the
decision, that Rosecrans was likely qualified for that position and was not appointed to that
position, and that Officer Poling is younger than Rosecrans. Therefore, Plaintiff has
established a prima facie case of age discrimination.
D) Wellington’s Legitimate, Nondiscriminatory Reasons or Pretext For Age
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Discrimination
If Plaintiff demonstrates a prima facie case of age discrimination, then the burden of
proof shifts to the Defendant to articulate a non-discriminatory reason for its action. Marsh v.
E. Associated Estates Realty Corp. Wellington has presented nondiscriminatory reasons for
the adverse employment action. The first reason presented by Wellington is that the Council
was aware of the past discipline of Rosecrans at MetroParks after he deleted data from a
computer hard drive owned by MetroParks. The second reason presented by Wellington is
that the Council had concerns regarding the ability of Rosecrans to maintain a full-time
position because they honestly believed that he had resigned rather than face a criminal
investigation. The third reason given by Wellington is that the Council was concerned that
Rosecrans failed to disclose his employment with the MetroParks. Finally, Wellington states
that Poling was highly recommended. Because these issues are nondiscriminatory,
Defendants argue they have met their burden. Moreover, Rosecrans admitted having deleted
data from a computer owned by MetroParks and admitted he failed to disclose his
employment with the MetroParks in his resume. Therefore, Wellington presented valid
nondiscriminatory reasons for hiring Poling instead of Rosecrans. According to Wellington,
the decision not to appoint Rosecrans to the full-time position was the result of these
legitimate, non-discriminatory reasons. Of particular importance to Defendants was the fact
that the Council understood that Rosecrans had resigned in the midst of allegations that he
had used the MetroPark’s computer to further his personal business and that this activity
occurred while he was on duty at the MetroParks. The Council believed Rosecrans had
resigned in order not to face a criminal investigation and potential prosecution. Thus, these

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issues raised concerns regarding Rosecrans’ use of his time as a full-time officer. Indeed,
Rosecrans admits that he was subjected to a Last Chance Agreement and demoted after it was
discovered that he deleted data from a computer hard drive owned by the Metroparks.
Rosecrans admits he then resigned but denies that he resigned in lieu of discipline. However,
according to Wellington, its honest belief regarding the circumstances of his discipline at the
Metroparks is sufficient to establish a legitimate, non-discriminatory reason for the decision
not to appoint him. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th
Cir. 2001). Rosecrans contends that Officer Poling was also disciplined by the MetroParks.
However, it was a three day suspension, which does not rise to the same level of Rosecran’s.

In light of the above, the Court finds that Defendants have established a legitimate,
nondiscriminatory reason for hiring Poling over Rosecrans.
Pretext
Once a defendant articulates a legitimate, nondiscriminatory reason for the adverse
employment action, the burden shifts back to the plaintiff to prove that the reason of the
employment decision given by the employer is pretext. Blizzard v. Marion Tech. College,
698 F.3d 275, 285 (6th Cir. 2012). The employee can accomplish this by proving (1) that the
proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate
[her discharge], or (3) that they were insufficient to motivate discharge. Id.
According to Rosecrans, O’Keefe admitted that Council never denied an appointment
of any officer or employee of the police department recommended by O’Keefe, therefore,
Plaintiff contends O’Keefe had the ultimate authority on hiring decisions for Wellington.
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Rosecrans argues that O’Keefe gave several contradictory responses regarding the decision to
hire Poling. O’Keefe admits that she has known Plaintiff for his entire life and that she has
resided within the Village of Wellington for over approximately seventy years, but she states
that she does not know how old Rosecrans is and claims she cannot identify the age
difference between Poling and Rosecrans. Futher, Rosecrans contends that O’Keefe claims
she cannot recall the hiring process of Poling in her deposition even though Wellington
employs approximately six full-time officers. Rosecrans notes that O’Keefe, during her
testimony, could not recall whether other interviews were conducted or if Poling was
interviewed but then recalled some of the details. Moreover, Rosecrans insists that the only
reason given by O’Keefe for the hiring of Poling is that Poling came highly recommended
from Metroparks via a recommendation letter which has not been identified and was not
produced through discovery. O’Keefe could not identify the author or location of said letter.
Rosecrans also contends that O’Keefe stated that she did not have any concern nor
reservation about any of the candidates. The minutes of the June 16, 2014 Council Meeting
record only that upon O’Keefe appointing Poling full-time officer, council approved the
appointment by vote, but no information is given about the Police Committee’s input or who
recommended Poling nor is there any reference to a meeting earlier in June of 2014.
O’Keefe testified that the Mayor appoints a candidate for a position based on her own
recommendation, the recommendation of the Police Chief or the Police Committee but not
appointment stands unless and until Council approves by vote. O’Keefe further testified that
Council never rejected one of her appointments.
Council President Hans Schneider provided a declaration attesting that he knew of

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Rosecrans discipline history at MetroParks, and his belief that Rosecrans resigned from the
MetroParks rather than be subject to a criminal investigation. Schneider further attests that
Rosecrans failure to provide his MetroParks work history on his application was also a matter
of concern for Council. Schneider attests that Poling was recommended by his former
employer and that Councilman Maurer knew of Polings work and approved of his hire.
Rosecrans asserts that the discipline reason is pretext because when Rosecrans was
disciplined by Metroparks, Wellington allowed him to work additional hours at Wellington.
For the reasons stated above, and because Rosecrans had well over double the amount of
Poling’s experience and even worked as a supervisor for Poling at Metroparks, Rosecrans
argues that the reasons given by Wellington are a pretext for age discrimination against
Rosecrans.
Wellington argues that Rosecrans has not raised any allegations that Wellington’s
proffered non-discriminatory reasons for failing to hire him have no basis in fact because
Rosecrans admitted he did not list his employment with the MetroParks on his resume and
that he received disciplinary action from the MetroParks. Also, Wellington contends that
Rosecrans challenges whether Wellington’s proffered reasons actually motivated his
discharge but does so by alleging that Council played no role in the process and that O’Keefe
was the “ultimate hiring authority.” According to Wellington, there is insufficient evidence to
support those contentions because the Charter only permits the Mayor to make an
appointment subject to the approval of Council. Wellington explains that Council never
rejected O’Keefe’s recommendations because she took care and consideration in formulating
her recommendations. Wellington asserts that because Rosecrans failed to present any
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evidence that O’Keefe’s recommendation was the result of age discrimination, Rosecrans
cannot show Wellington’s proffered reason did not motivate the decision to select another
candidate. Moreover, Wellington asserts that Rosecrans did not allege that similarly situated
younger individuals were treated differently and did not provide any evidence as to whether
the Council knew or approved of Chief Rollins’ decision to allow Plaintiff to continue
working for Wellington after learning of the Metroparks discipline. Wellington further argues
that there is a difference between permitting Rosecrans to continue working in his part-time
capacity, knowing of his disciplinary issues with MetroParks, versus appointing him to a fulltime position. Indeed, while the concerns raised by Rosecrans’ discipline may not have been
enough for Wellington to terminate him, it did not mean that Wellington would overlook
them in assigning Rosecrans more responsibilities. Wellington concludes that Rosecrans
failed to establish a genuine issue of material fact of pretext.
A plaintiff must “put forth evidence which demonstrates that the employer did not
‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment
action.” Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). So long as an
employer honestly believed its proffered reason, an employee cannot show pretext, even
if the facts are later shown to be incorrect. Segel v. Kimberly-Clark Corp., 473 F.App’x 416,
421 (6th Cir. 2012); Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). Courts may
not second-guess the business judgment of an employer but must instead determine “whether
the employer gave an honest explanation of its behavior.” Hedrick v. W. Res. Care Sys., 355
F.3d 444, 462 (6th Cir. 2004). “Time and again we have emphasized that [o]ur role is to
prevent unlawful hiring practices, not to act as a super personnel department that second
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guesses employers’ business judgments.” Corell v. CSX Transp., Inc., 378 F.App’x 496, 505
(6th Cir. 2010) quoting Risch v. Royal Oak Police Dept., 581 F.3d 383, 399 (6th Cir. 2009).
The inconsistencies in O’Keefe’s testimony are not sufficient evidence to prove that
the reasons presented by Wellington are pretext, even though the recommendation letter
cannot be produced. There are no statements supporting an animus by Defendant based on
age.

The alleged inconsistencies of O’Keefe’s testimony do not appear to be inconsistencies

in fact but stem from her lack of memory. She clearly stated age had no basis in her
appointment and did not know Rosecrans’ or Poling’s ages because they are not permitted by
law to ask at the interview. She could only approximate his age due to her close relationship
with Rosecrans’ mother-in-law. She could not recall who recommended Poling.
It is undisputed that the Wellington Village Charter calls for all appointments by the
Mayor to be approved by Council before they take effect. Council President Schneider’s
declaration attests that Poling was recommended by MetroParks and that Councilman and
Police Committee member Maurer was familiar with Poling and thought he was appropriate
for the position. Schneider attests Council had concerns about Rosecrans’s discipline history
and failure to disclose his complete work history on the full-time officer application. All of
these factors are undisputed.

Indeed, Rosecrans failed to present evidence that O’Keefe’s

recommendation and the Council’s appointment were based on age discrimination.
Rosecrans alleges that his discipline history is only a pretext because Wellington
allowed him to work additional hours after he was disciplined by MetroParks. However, as
Wellington correctly counters, the concerns raised by Rosecrans’ discipline may not have
been enough to terminate his part-time contract, but were a more significant concern in
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assigning Rosecrans the responsibilities of a full-time position. Rosecrans has presented no
evidence that the concerns regarding his past discipline were insufficient. Rosecrans admits
he was disciplined by MetroParks. That discipline involved a more serious infraction than
Poling’s as Rosecrans admits he was demoted while Poling incurred a three day suspension
for his unidentified infraction. He further admits he did not disclose his twenty plus years of
work at MetroParks on his application albeit because he states he only wanted to include his
most recent employment. This failure to list Metroparks in light of Defendants belief that
there was a criminal investigation about Rosecrans misconduct raised serious red flags for
Defendants.
Therefore, Rosecrans fails to demonstrate that the stated reasons were a pretext for
impermissible discrimination and thus, fails to establish a genuine issue of material fact.
Consequently, the Court grants Defendant’s Motion for Summary Judgment.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 9, 2017

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