Roper v. City Of Cincinnati Fire Department

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION ~ CINCINNATI

JANOS ROPER, : Case No. 1:22-cv-652

Plaintiff, Judge Matthew W. McFarland

:

CITY OF CINCINNATI

FIRE DEPARTMENT, :

Defendant.

ORDER GRANTING DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT (Doc. 49)

This matter is before the Court on Defendant’s Motion for Summary Judgment

(Doc. 49). Plaintiff filed a Response in Opposition (Doc. 50), to which Defendant filed a

Reply in Support (Doc. 51). For the following reasons, Defendant's Motion for Summary

Judgment (Doc. 49) is GRANTED.

FACTS

Plaintiff is a firefighter with Defendant City of Cincinnati’s Fire Department.

(Roper Dep., Doc. 39, Pg. ID 644.) He is in a protected class for his race; he is African

American, Asian, Caucasian, and Native American. (Roper Response to Interrog., Doc.

39-11, Pg. ID 880.) Plaintiff has worked for Defendant as a firefighter for 24 years. (Roper

Dep., Doc. 39, Pg. ID 644.) He was promoted to Lieutenant in 2015, and then to Captain

in 2018, which is the role he currently holds. (Id.) Sometime during his employment with

Defendant, Plaintiff was diagnosed with mental health issues, which qualify as a

disability and make him a protected class member. (Id. at Pg. ID 738-39.) In August 2019,

Plaintiff applied for the District Chief position, for which he was required to take the in-

person promotional exam administered by Defendant. (Id. at Pg. ID 669.) Plaintiff claims

that he and several other individuals were given assigned seats for the exam, but others

were not. (Id. at Pg. ID 673-74.) During the exam, Plaintiff and five other individuals

experienced technical problems that caused formatting issues with their responses. (Id. at

Pg. ID 675-78; Burks Dep., Doc. 41, Pg. ID 1181.) Plaintiff explained these issues to the

proctor, Erica Burks, who eventually told Plaintiff to ignore the formatting issues. (Roper

Dep., Doc. 39, Pg. ID 675-80.) Plaintiff experienced stress during the exam because of the

time taken to resolve the formatting issues. (Id.) Of the six total individuals who

experienced issues with their exam, five of them were African American, including

Plaintiff, and one was white. (Employee Summary Reports, Docs. 49-1 through 49-4.) One

of the examinees who experienced these issues, Captain Byrd, was later promoted to

District Chief. (Roper Dep., Doc. 39, Pg. ID 676.)

After the exam, Plaintiff contacted Burks to discuss how the formatting issues

would affect the grading process of the exam. (Burks Email, Doc. 39-17.) The exam

vendor, Industrial/ Organizational Solutions (“IOS”) investigated the exam issues and

determined that the best course of action would be to not penalize any candidate for

formatting errors when grading these exams. (IOS Response, Doc. 41-5.) Once the exams

were graded, IOS created the promotional list, ranking the candidates in order of their

scores, (Roper Dep., Doc. 39, Pg. ID 700-01; Promotional List, Doc. 39-7.) Plaintiff ranked

sixteenth on the list, but Defendant only had eleven vacancies for the position. (Roper

Dep., Doc. 39, Pg. ID 702-03.) Pursuant to Ohio Revised Code § 124.46, Defendant filled

those eleven positions in order of the applicants’ ranking on the promotional list. (Id.) In

other words, the top eleven candidates were promoted; as such, Plaintiff was not selected.

(Id.) Of these eleven promoted individuals, nine were Caucasian and two were racial

minorities. (Promotional List, Doc. 39-7; Roper Response to Interrog., Doc. 39-11, Pg. ID

888.)

In November 2019, Plaintiff filed a Charge of Discrimination with both the Equal

Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission

(“OCRC”) against Defendant, alleging that he was subjected to different terms and

conditions of employment during the promotional exam process based on his race. (2020

OCRC Charge, Doc. 39-5.) But, they dismissed his complaint in January 2020, explaining

that race discrimination did not factor into his performance on the exam or lack of

promotion. ([d.) In April 2020, Plaintiff filed a complaint of race discrimination after

receiving his performance review from District Chief Vollmer, who originally gave him

failing marks in the “attitude/ initiative” category but then changed the score to passing.

(Appeal Letter, Doc. 39-12, Pg. ID 893.) Plaintiff asserts that after this complaint Vollmer

issued reprimands to Plaintiff for tasks which Plaintiff claims were unfair and outside of

Defendant's policies. (Notice of Official Reprimand, Doc. 39-18; Roper Dep., Doc. 39, Pg.

ID 798-800.) Plaintiff filed another claim with the EEOC and OCRC, this time claiming

race and disability discrimination, along with retaliation, in February 2022. (2022 OCRC

Charge, Doc. 39-24.) This charge, too, was dismissed. (Id.)

PROCEDURAL POSTURE

On June 22, 2022, Plaintiff brought this suit against Defendant in the Hamilton

County Court of Common Pleas. (Notice of Removal, Doc. 1.) Defendant removed the

case to this Court on November 10, 2022, the same day it was served with Plaintiff's

Complaint. (Id.) Plaintiff brought seven total claims against Defendant, but only three

remain: failure to promote based on race discrimination, failure to promote based on

disability discrimination, and retaliation. (Compl., Doc. 3; Order, Doc. 20.) Defendant

moves for summary judgment on these remaining claims.

LAW

When there is no genuine dispute as to any material fact and the moving party is

entitled to judgment as a matter of law, the district court shall grant summary judgment.

Fed. R. Civ. P. 56(a). The moving party has the burden to conclusively show that no

genuine issue of material fact exists. Celotex Corp. v. Catrett,477 US. 317, 323

(1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If the moving party

meets that burden, then it becomes the nonmoving party’s responsibility to point to

specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). A court is under no obligation to search the record for genuine issues of

material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996).

Moreover, a “mere scintilla” of evidence in support of the nonmoving party’s

position is not enough to avoid summary judgment. Daniels v. Woodside, 396 F.3d 730, 734

(6th Cir. 2005). Rather, to preclude summary judgment, the nonmoving party must put

forth probative evidence on which a jury could reasonably reach a verdict in that party’s

favor. Anderson, 477 U.S. at 251-52; Lansing Dairy, 39 F.3d at 1347. If the nonmoving party

fails to make the necessary showing for an element on which it has the burden of proof,

then the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.

ANALYSIS

Defendant asserts that it is entitled to summary judgment on Plaintiff's remaining

claims. (Motion, Doc. 49, Pg. ID 1458.) Defendant first contends that Plaintiff cannot

support a prima facie claim for failure to promote based on race or disability. (Id. at Pg.

ID 1462.) And, if Plaintiff did establish a prima facie case, Defendant maintains that it had

legitimate, non-discriminatory reasons for not promoting Plaintiff. ([d. at Pg. ID 1468.)

Finally, Defendant argues that Plaintiff failed to meet his burden on his retaliation claim.

(Id. at Pg. ID 1471.) The Court will address each argument in turn.

I. Plaintiff’s Prima Facie Claims

Defendant states that Plaintiff has failed to establish prima facie claims for his

failure to promote causes of action. To establish a prima facie case of discrimination for

failure to promote, Plaintiff must demonstrate: (1) he is a member of a protected class; (2)

he applied for and was qualified for a promotion; (3) he was considered for and denied

the promotion; and (4) other employees of similar qualifications who were not protected

class members received promotions at the time that Plaintiff was denied a promotion.

Brown v. Tennessee, 693 F.2d 600, 603 (6th Cir. 1982). A plaintiff may establish his case by

presenting either direct evidence of discrimination or circumstantial evidence that allows

for an inference of discrimination. Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir.

2003).

Plaintiff concedes that he has not provided direct evidence of discrimination and

instead relies on circumstantial evidence. (See generally Response, Doc. 50.) When a

plaintiff has not presented any direct evidence of discrimination, as is the case here, the

McDonnell Douglas burden-shifting framework applies. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); see also Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248 (1981).

Under this framework, a plaintiff faces the initial burden of presenting a prima facie case,

which creates a rebuttable presumption of discrimination that requires the defendant “to

articulate some legitimate, nondiscriminatory reason for taking the challenged action.”

Johnson, 319 F.3d at 866 (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 (6th

Cir. 2000)) (cleaned up). Once the defendant satisfies this burden, the plaintiff must prove

that the defendant’s proffered reason was a “pretext to hide unlawful discrimination.” Id.

(quoting Johnson, 215 F.3d at 573) (cleaned up). The Court will examine each of Plaintiff's

claims of discrimination independently below.

a. Plaintiff's Claim for Race Discrimination

Looking first at the claim for failure to promote based on race discrimination,

Defendant concedes that Plaintiff is in a protected class for his race and that he was

qualified for the promotional position. (Motion, Doc. 49, Pg ID 1463.) Defendant also

agrees that Plaintiff was on the eligibility list for the position but was ultimately not

promoted. (Id. at Pg. ID 1463-64.) Thus, Plaintiff has met the first three elements of his

failure to promote claim. (Id.) But, Defendant argues that Plaintiff’s claim fails on the final

element, as Plaintiff has not shown any similarly situated, nonprotected individuals who

were treated more favorably. (Id.)

To be similarly situated, individuals need not be perfectly correlated, but must be

similar in “relevant aspects,” such as working for the same supervisor, being subjected

to the same standards, or engaging in the same conduct without differentiating

circumstances to warrant different treatment. Ercegovich v. Goodyear Tire & Rubber Co., 154

F.3d 344, 352 (6th Cir. 1998) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.

1992)). Defendant argues that Plaintiff has failed to show similarly qualified,

nonprotected individuals who were promoted over him. (Motion, Doc. 49, Pg. ID 1464.)

In support, Defendant outlines the promotional process for the District Chief position,

wherein individuals take the exam, are evaluated based on their scores, and are then

ranked on the eligibility list. (Id. at Pg. ID 1465.) But, in Plaintiff's case, the individuals he

points to as similarly situated all scored higher than he did on the test; they were therefore

promoted before him. (Id. at Pg. ID 1464-65.) And, because they were ranked higher than

he was, these individuals were not similarly situated. Defendant cites to several cases

where the Sixth Circuit held that differences in performance ratings or test scores render

two employees not similarly situated. (Id.); see, e.g., Gaffney v. Potter, 345 F. App’x 991, 993

(6th Cir. 2009); Johnson v. Metro. Govt. of Nashville & Davidson Cty., 502 F. App’x 523, 537

(6th Cir. 2012). And, assuming that the promoted individuals were similarly situated,

Defendant argues that Plaintiff's claim still fails because two of the promoted employees

were also protected class members for their race. (Id. at Pg. ID 1465.) Thus, Defendant

maintains that Plaintiff has not met the fourth element of a prima facie claim for race

discrimination.

In response, Plaintiff argues that the promoted individuals were all similarly

situated to him because they were all “eligible to take the exam.” (Response, Doc. 50, Pg.

ID 1564.) But, importantly, he does not support his claim with any case law showing that

individuals with different test scores are still considered similarly situated. Indeed, the

Court finds that a score on a qualifying exam is certainly a “relevant aspect[]” for

determining whether individuals are similarly situated. Ercegovich, 154 F.3d at 352; see

also Gaffney, 345 F. App’x at 993; Johnson, 502 F. App’x at 537. As the promoted individuals

all scored higher than Plaintiff, the Court agrees with Defendant that Plaintiff did not

possess similar qualifications to those promoted. (See Reply, Doc. 51, Pg. ID 1579.) Thus,

the promoted employees are not similarly situated.

But, Plaintiff also points to the fact that white applicants were able to complete the

exam, whereas he was denied that opportunity, as evidence of similarly situated

individuals being treated more favorably. (Reply, Doc. 51, Pg. ID 1579.) However, as

Defendant points out, the record does not contain evidence that Plaintiff was unable to

complete the exam, only that he experienced difficulty with the issues. (Reply, Doc. 51,

Pg. ID 1567; see also Roper Dep., Doc. 39, Pg. ID 675-80.) And, IOS states that “[a]ssessors

were explicitly instructed to ignore formatting concerns,” and that none of the candidates

would be penalized for such errors. (IOS Response, Doc. 41-5.) Further, Plaintiff

reinforced that Defendant treated all examinees equally, stating that all of the test-takers

were told at the end of the exam to ignore any formatting issues in their responses. (Roper

Dep., Doc. 39, Pg. ID 692-94.) Additionally, just as with the individuals who were

promoted, protected and nonprotected individuals alike experienced the same technical

issues with the exam. (Employee Summary Reports, Docs. 49-1 through 49-4.) This

discredits the claim that Defendant treated similarly situated nonprotected individuals

more favorably with the promotional exam, since a nonprotected test-taker received the

same problematic exam as Plaintiff. Plaintiff’s claim still fails on the final element, even

when accounting for the exam issues.

Without demonstrating the final element of the failure to promote for race

discrimination claim, Plaintiff has not established a prima facie case of discrimination.

The Court’s analysis of the race discrimination claim can end here without moving to the

next step of the McDonnell Douglas burden-shifting framework. Because no genuine

dispute of material fact exists as to whether Defendant refused to promote Plaintiff

because of his race, Defendant is entitled to summary judgment on this claim.

b. Plaintiff’s Claim for Disability Discrimination

Plaintiff also brings a claim of failure to promote based on disability

discrimination, which carries the same elements to establish a prima facie case as his race

discrimination claim. See Brown, 693 F.2d 603. Defendant contends, however, that “the

record is barren when it comes to evidence that anyone within the City knew [Plaintiff]

had a disability until after the 2019 District Chief promotional process ended.” (Motion,

Doc. 49, Pg. ID 1467.) Defendant cites to a recent case where the record similarly lacked

allegations that the defendant-employer knew of the plaintiff-employee’s disability. (Id.

(citing Herbert v. KC Robotics, Inc., No. 1:23-CV-633, 2024 WL 3925673 (S.D. Ohio Aug. 21,

2024), report and recommendation adopted, 2024 WL 4278309 (S.D. Ohio Sept. 24, 2024).) In

Herbert, the Court found that the record contained “no indication” that the employer

knew of the plaintiff's disability at the time of the promotion decision. 2024 WL 3925673,

at *6. This lack of knowledge meant there was “insufficient factual content to warrant a

reasonable inference” that the plaintiff was passed over for a promotion because of his

disability. Id. As such, the Court dismissed the plaintiff's failure to promote claim. Id. at

*6-7.

Defendant claims that the record in this case is similarly insufficient to show that

Defendant had knowledge of Plaintiffs disability prior to the 2019 promotional process.

(Motion, Doc. 49, Pg. ID 1467-68.) Specifically, Plaintiff stated that his family, health care

professionals, a friend, and some colleagues at the Public Employee Assistance Program

knew about his mental health issues. (Roper Dep., Doc. 39, Pg. ID 742-43.) But,

Defendant’s Human Resources department only learned about his disabilities after the

2019 promotional process had ended. (Id. at Pg. ID 743-45; 758-59; Accommodation Email,

Doc. 39-14.) Burks also testified that she was unaware of Plaintiff requesting medical

leave at any point but remembered that he had submitted an accommodation request

before the 2022 District Chief promotional process. (Burks Dep., Doc. 41, Pg. ID 1161-62.)

Furthermore, Assistant Chief of Human Resources, Steven Breitfelder, and Plaintiff's

supervisor, Jason Vollmer, confirmed that they were unaware of Plaintiffs disability.

(Breitfelder Dep., Doc. 43, Pg. ID 1282-83; Vollmer Dep., Doc. 47, Pg. ID 1407.)

In response, Plaintiff states that Defendant perceived him as disabled because his

two supervisors recalled that he took some extended time off from work. (Response, Doc.

50, Pg. ID 1571-72.) However, the testimony from both Breitfelder and Vollmer reveals

that they only recalled Plaintiff taking extended sick time off but were unaware of the

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circumstances surrounding that leave. (Breitfelder Dep., Doc. 43, Pg. ID 1282-83; Vollmer

Dep., Doc. 47, Pg. ID 1376-77.) So, the record is still void of facts showing that Defendant

had knowledge of Plaintiff's disability. The Court, therefore, finds it cannot make a

“reasonable inference” that Defendant declined to promote Plaintiff because of his

disability when Defendant was unaware of this disability. See Herbert, 2024 WL 3925673,

at *6. As with the race discrimination claim, Plaintiff has not established a prima facie

case of failure to promote for disability discrimination and so the burden does not shift

to Defendant under the McDonnell Douglas framework. Thus, no genuine dispute of

material fact exists on this claim either and Defendant is entitled to summary judgment.

Il. _—_‘ Plaintiff’s Retaliation Claim

Plaintiff’s remaining claim states that Defendant retaliated after he complained to

management about discrimination, harassment, and disparate treatment. (Compl., Doc.

3, 110.) To establish a prima facie case for retaliation under either Title VII or Ohio

Revised Code § 4112, Plaintiff must prove that: (1) he engaged in a protected activity

under Title VII; (2) Defendant knew he exercised his protected rights; (3) Defendant took

an adverse employment action against him; and (4) Plaintiff's protected activity was the

direct cause of the adverse employment action. Kenney v. Aspen Techs., Inc., 965 F.3d 443,

448 (6th Cir. 2020) (citing Laster v. City of Kalamazoo, 746 F.3d 714, 730-31 (6th Cir. 2014)).

If Plaintiff successfully establishes his prima facie case, then the McDonnell Douglas

framework shifts the burden to Defendant to prove a “legitimate, nondiscriminatory

reason for its action.” 411 U.S. at 802. And, if Defendant satisfies that burden, then

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Plaintiff must demonstrate that Defendant's proffered reason is pretext for

discrimination. Id. at 804.

Courts have defined “protected activity” as one of two types: participation and

opposition. Stanley v. ExpressJet Airlines, Inc., 808 F. App’x 351, 357 (6th Cir. 2020). More

specifically, opposition is when a plaintiff resists an employer's discriminatory activity

or practice that Title VII deems unlawful, while participation is when a plaintiff testifies,

assists, or participates in an investigation or proceeding under Title VII. Id. In Stanley, the

Sixth Circuit upheld summary judgment in favor of the employer-defendant where the

plaintiff failed to show that she engaged in a protected activity and thus did not establish

a prima facie retaliation claim. Id. Here, Defendant contends that Plaintiff's claim should

fail for the same reason. (Motion, Doc. 49, Pg. ID 1472.)

As evidence of a protected activity, Plaintiff states that he filed a grievance of race

discrimination with Defendant's Civil Service Commission regarding both the exam

conditions and Vollmer’s behavior. (Response, Doc. 50, Pg. ID 1567-68; see also Compl.,

Doc. 3, 45; Roper Dep., Doc. 39, Pg. ID 709-12, 724-26.) Defendant states that Plaintiff

makes this claim for the first time in his Response, and thus the Court should not consider

his argument. (Reply, Doc. 51, Pg. ID 1582.) However, Plaintiff mentions that he and other

African American employees made Civil Service Commission race discrimination

grievances in both his Complaint and deposition; therefore, the Court will consider his

argument. (Compl., Doc. 3, { 45; Roper Dep., Doc. 39, Pg. ID 709-12, 724-26.) And, the

Court agrees with Plaintiff that making an official race discrimination complaint is indeed

a protected activity for purposes of his retaliation claim. E.E.O0.C. v. New Breed Logistics,

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783 F.3d 1057, 1067 (6th Cir. 2015) (finding that complaints to management and less

formal protests than EEOC complaints are protected activities).

However, although Plaintiff does not directly address the third element, Plaintiff

asserts that Vollmer’s “reprimands were pretext for retaliation,” indicating that he

believes Vollmer’s reprimands were the adverse employment actions. (Response, Doc.

50, Pg. ID 1568.) The Court disagrees. It is well-settled 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” for purposes of a

Title VII claim. Creggett v. Jefferson Cnty. Bd. of Educ., 491 F. App’x 561, 566 (6th Cir. 2012)

(collecting cases). And here, Plaintiff has not pointed to any fact on the record showing

that these reprimands prevented him from receiving a raise or promotion, or caused him

to experience any other adverse employment consequence. On this third element alone,

therefore, Plaintiff's retaliation claim fails.

Nevertheless, Defendant also contends that Plaintiff fails to establish a prima facie

retaliation claim because he cannot show the direct causal connection between his

complaints and any adverse employment action. (Reply, Doc. 51, Pg. ID 1583-84.)

“Whether protected activity was the but-for cause of an adverse employment action

depends upon the context in which that action occurs.” Kenney, 965 F.3d at 448. The

absence of corroborative causal evidence generally undermines a theory of causation.

Robertson v. FinPan, Inc., No. 1:18-CV-716, 2021 WL 2534174, at *10 (S.D Ohio June 21,

2021) (citing Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010)). And,

temporal proximity alone is not sufficient to establish causation, especially as more time

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elapses between the protected activity and the alleged adverse action. Vereecke, 609 F.3d

at 400. The Court must look at “the totality of the circumstances to determine whether an

inference of retaliatory motive could be drawn.” Id. at 401.

Defendant argues that the record contains a “genuine lack of support for causal

connection and certainly no support for a temporal proximity argument,” as Plaintiff

does not seem certain about the dates of his complaints. (Reply, Doc. 51, Pg. ID 1584.)

Defendant cites to Plaintiff's deposition where he states: “I felt [the reprimand from

Vollmer] was based on race because I talked to [Vollmer]. And me, as an African

American person, going to District Chief Vollmer who identified as Caucasian . . . he

failed to listen to me.” (Id. (quoting Roper Dep., Doc. 39, Pg. ID 726.)) When asked directly

what evidence Plaintiff had to support the claim that Vollmer gave him reprimands in

retaliation for his discrimination complaints, Plaintiff responded first:

Because I had discussed my concerns with District Chief Vollmer, prior to

the incident, about speeding, and my previous history with him. And then

he was aware that I was off sick for about a month or so, and he still gave

me a written reprimand for [not completing the required HIPAA training],

after I acknowledged that I’m working on it. As he was coming down in the

room, I was basically finishing the HIPAA training. I even told him, Chief,

I’m finishing it right now as you're talking. I’m almost done. He said, it

doesn’t matter. You should have finished it already.

(Id. at Pg. ID 797.) And, when asked a second time during his deposition, Plaintiff gave a

similarly vague answer, stating his evidence to support the retaliation claim was “the

public record, and I submitted to civil service, as well as my previous history with District

Chief Vollmer.” (Id. at Pg. ID 799.) Essentially, Plaintiff seems to indicate that because he

formally complained, and because of his race, Vollmer unfairly reprimanded him; but,

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Defendant asserts that Plaintiff’s statements are “insufficient to support but-for

causation.” (Reply, Doc. 51, Pg. ID 1584.) The Court agrees. Beyond stating the bare facts

that Vollmer reprimanded him for actions that Plaintiff did not think warranted

reprimand, Plaintiff has not shown indicia that his complaints directly caused the

unwarranted reprimands. He has not indicated what “previous history” he and Vollmer

shared that would cause him to believe the actions were retaliatory. Nor has he pointed

to any additional information on the record beyond how he felt about the situation that

creates circumstances from which the Court could infer retaliation. He merely makes the

conclusory assertion that his complaint caused Vollmer to retaliate against him.

This finding is further backed when the Court considers the totality of the

circumstances, specifically timing. The Court notes that approximately five months

passed between Plaintiff's complaint with the Civil Service Commission in November

2019 and his poor performance review from Vollmer in April 2020. Courts have found

that even shorter gaps between the protected activity and adverse action, absent other

causal evidence, were insufficient to show causation. Randolph v. Ohio Dept. of Youth

Servs., 456 F.3d 724, 737 (6th Cir. 2006) (four-months gap without indicia of retaliatory

conduct was insufficient to show causation); Cooper v. City of N. Olmsted, 795 F.2d 1265,

1272 (6th Cir. 1986) (finding the same); Kenney, 965 F.3d at 449 (finding that even a 75-day

gap, standing alone, was insufficient to show a “convincing cause for proving

causation”). Thus, a five-month gap, with no other indicia of retaliatory conduct, is

insufficient to show that Vollmer’s actions were in retaliation to Plaintiff's complaints.

Demonstrating neither the third nor fourth element of his retaliation claim, Plaintiff has

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failed to establish a prima facie case. No genuine dispute as to Plaintiff's retaliation claim

remains, and Defendant is entitled to summary judgment.

CONCLUSION

Based on the foregoing reasons, the Court ORDERS the following:

1. Defendant’s Motion for Summary Judgment (Doc. 49) is GRANTED;

2. Summary judgment is ENTERED in favor of Defendant on all of Plaintiff's

remaining claims;

3. This case is TERMINATED from the Court's docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Hoh, wns

By: ,

JUDGE MATTHEW W. McFARLAND

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