Arbitrator Findings & Post-Reinstatement Delay as Evidence of Pretext and Retaliation
Commentary on Jeff Smith v. City of Union, Ohio, 89 F.4th ___ (6th Cir. 2025)

Introduction

In Jeff Smith v. City of Union, Ohio, the United States Court of Appeals for the Sixth Circuit reversed summary judgment entered against a 51-year-old police officer who alleged age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA) and Ohio’s analogue. The decision crystallises two doctrinal clarifications:

1. An arbitrator’s reasoning in a post-termination grievance can constitute potent evidence of pretext in an ADEA suit, even though the award is non-binding in court.
2. A fitness-for-duty examination coupled with an unexplained delay in reinstatement—especially when it thwarts promotions and pay raises—can satisfy the “materially adverse action” element of ADEA retaliation.

Because these points recur in unionised and public-sector workplaces, the opinion is likely to guide future litigation across the Circuit and beyond.

Summary of the Judgment

Officer Jeff Smith, the oldest and longest-tenured officer in the City of Union, was terminated for alleged policy violations during two May 2020 incidents. An arbitrator later ruled that discharge was disproportionate, mandating reinstatement with backpay. Smith filed an EEOC charge, claiming the discharge and subsequent reinstatement delays were driven by age bias and retaliation.

The district court awarded summary judgment to the City, but the Sixth Circuit reversed, holding:

• Age Discrimination: A reasonable jury could find the City’s stated reasons pretextual, based on (i) the arbitrator’s conclusion that termination was “so unreasonable” as to suggest ulterior motives, and (ii) the Chief’s comment comparing Smith to “younger officers.”
• Retaliation: Requiring a fitness-for-duty exam and delaying reinstatement—during which the City promoted younger officers and withheld Smith’s raise—could dissuade a reasonable worker from protected activity, satisfying the “materially adverse” standard; the City offered no legitimate reason for the delay.

The case was remanded for trial.

Analysis

1. Precedents Cited and Their Influence

a. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

The familiar three-step burden-shifting structure governed both discrimination and retaliation claims. After Smith made a prima facie showing, the burden shifted to the City, which offered a performance-based justification. Smith then had to establish pretext.

b. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)

Reiterated that ADEA plaintiffs must prove “but-for” causation, framing why circumstantial proof (e.g., comparators, arbitrator findings, ageist remarks) was critical.

c. Blizzard v. Marion Tech. College, 698 F.3d 275 (6th Cir. 2012)

Provided twin standards for discrimination and retaliation under ADEA and Ohio law; cited for the “commonsense” pretext inquiry and “materially adverse” analysis.

d. Arbitrator-related Cases – Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985); Becton v. Detroit Terminal, 687 F.2d 140 (6th Cir. 1982)

Earlier decisions permitted parties to use arbitration outcomes as evidence, but Smith is the first published Sixth Circuit case to emphasise an arbitrator’s adverse reasoning as independent proof of pretext.

e. Retaliation & Temporal Proximity – Mickey v. Zeidler Tool & Die, 516 F.3d 516 (6th Cir. 2008); Brown v. Lexington-Fayette Urban County Gov’t, 483 F. App’x 221 (6th Cir. 2012)

Mickey established that close temporal proximity alone can evidence causation. Brown recognised forced leave and psychiatric evaluation as materially adverse; Smith extends that reasoning to fitness-for-duty exams accompanied by strategic delay.

2. The Court’s Legal Reasoning

a. Pretext via “Extreme Unreasonableness”

Borrowing language from Bartlett v. Gates and Risch v. Royal Oak Police Dep’t, the panel stressed that punishment “so unreasonable” as to defy rational business judgment signals pretext. The arbitrator’s view that the City’s policy-violation theory was “so unreasonable … that other motivations existed” fit squarely within that doctrinal lane.

b. Weight of an Arbitrator’s Decision

While not issue-preclusive, an arbitration award can amplify factual disputes. The court drew a sharp line: it did not adopt the award wholesale, but allowed a jury to consider the arbitrator’s critique as evidence. This is doctrinally significant because employers often treat arbitration as a parallel universe insulated from statutory claims; Smith bridges that divide.

c. Age-Related Remark as Circumstantial Evidence

Chief Blackwell’s comment about having “watched videos of younger officers that didn’t make the mistakes” occurred during the decision-making process and was made by the key decision-maker. Though isolated, combined with the arbitrator’s findings it reasonably supported an inference of age bias.

d. Materially Adverse Action & Fitness-for-Duty Exams

Distinguishing ADA-specific precedent (Pena v. City of Flushing), the panel refocused on the Burlington Northern standard: whether the action might dissuade a reasonable worker. It held that an exam plus delay—resulting in lost promotional and financial opportunities—cleared that threshold.

e. Causation via Timing and Opportunity

Measuring from the City’s “first opportunity to retaliate,” the court found a two-month window (arbitration award to delayed reinstatement) sufficiently proximate, citing Kirilenko-Ison and Cooley.

3. Likely Impact

• Union Grievance Overlap: Employers can no longer assume that victory or loss in labor arbitration stays siloed; the reasoning itself can become Exhibit A (or B) in ADEA litigation.
• Fitness-for-Duty Policies: Public entities relying on exams must articulate clear, contemporaneous reasons and avoid unnecessary lags, lest courts infer retaliatory motive.
• Evidentiary Strategy: Plaintiffs will more aggressively cite arbitrator language—“disproportionate,” “unreasonable,” “progressive discipline ignored”—to survive summary judgment.
• Holistic Pretext Analysis: The opinion reinforces that no single “smoking gun” is required; mosaic evidence (award + stray remark + timing) suffices.

Complex Concepts Simplified

• Pretext: Evidence suggesting the employer’s stated reason is a cover-story. Compare to a child claiming the dog ate homework—if surrounding facts show the homework in the trash, the excuse is pretextual.
• Materially Adverse Action (Retaliation): Any employer step that could reasonably scare an employee away from complaining—doesn’t have to be firing; can be transfers, exams, delayed reinstatement, etc.
• Progressive Discipline: Contractual ladder of penalties—verbal warning → written warning → suspension → discharge. Skipping rungs can evidence unfairness.
• Fitness-for-Duty Exam: Medical/psychological evaluation to confirm an employee can safely perform job duties. Legitimate in safety-sensitive roles but must be job-related and timely executed.
• Temporal Proximity: Short timeline between complaint and punishment; courts treat close timing as smoke that may signal retaliatory fire.

Conclusion

Smith v. City of Union is a pivotal Sixth Circuit pronouncement that:

1. An arbitrator’s critique of employer discipline can propel an ADEA claim past summary judgment.
2. Delays and procedural hurdles imposed after an employee’s successful grievance may constitute actionable retaliation—particularly when they strip the employee of promotions or raises.

Employers, especially public agencies bound by collective bargaining agreements, should promptly implement arbitral awards and meticulously document legitimate reasons for any post-award conditions. Plaintiffs, for their part, now have a clarified roadmap to marshal arbitration records and timing evidence to prove pretext and retaliation. The decision thus tightens the intersection between labor arbitration and federal anti-discrimination law while fortifying employee protections against subtle forms of reprisal.