                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0460n.06

                                          No. 14-3704
                                                                                      FILED
                                                                                Jun 19, 2015
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

KENNETH ROTH,                                           )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
                                                                ON APPEAL FROM THE
v.                                                      )
                                                                UNITED STATES DISTRICT
                                                        )
                                                                COURT FOR THE
WEST SALEM POLICE DEPARTMENT, et al.,                   )
                                                                NORTHERN DISTRICT OF
                                                        )
                                                                OHIO
       Defendants-Appellees.                            )
                                                        )
                                                        )



BEFORE:        MERRITT, BOGGS, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Kenneth Roth was a part-time police officer in the West Salem

Police Department, and also a member of the Marine Reserves who was deployed to Iraq on two

occasions. Roth was passed up for a promotion to sergeant in the police department while he

was away on his second deployment. Shortly after he returned to the police force from that

deployment, he was suspended pending completion of anger management classes and passage of

a psychological evaluation. Roth did not pass the evaluation and eventually the Village of West

Salem terminated him. Roth sued the Village, arguing that the police department’s failure to

promote him and his suspension and subsequent termination violated the Uniformed Services

Employment and Reemployment Rights Act protecting military personnel and veterans from

discrimination. Roth also alleged that his suspension violated Ohio disability discrimination law.

The district court granted summary judgment to the Village, and Roth appeals, arguing that he
No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

had presented enough evidence to warrant a trial on both claims.           However, the record

demonstrates that the police department’s actions with respect to Roth were justified by valid,

non-discriminatory reasons.

       Roth was commissioned as a paid West Salem police officer in February 2001. His first

six months were a probationary period, which was extended for another six months for unclear

reasons in September 2001. On October 12, 2001, Roth received a written warning from then-

Police Chief Terry Johns for failing to obey an order. The warning was “final,” and stated that

the “[n]ext procedure will result in dismissal,” but it is not clear whether this applied only to

Roth’s probationary period. Aside from brief training periods, Roth always worked for the

police department on a part-time basis, and he worked full-time for a security contractor at a

NASA facility. When he became a police officer, Roth was a member of the Marine Reserves,

having previously served on active duty.

       Roth’s time on the West Salem force was punctuated by three leaves of absence. First,

from February 2005 to September 2005, Roth was deployed to Iraq. Second, in 2007, Roth took

time off to receive counseling from the Veterans Administration while going through a divorce.

Third, Roth was deployed to Iraq again in May 2008, returning to the United States in April 2009

and being released from active duty in June 2009.

       Prior to the start of Roth’s first deployment to Iraq in February 2005, Chief Donald Sims

(who had succeeded Chief Johns) received a complaint that Roth had stopped a motorist who had

circled the block while waiting to pick up a passenger.        Chief Sims addressed the issue

informally by having a conversation with Roth about the standard for probable cause.

       Upon his return in September 2005, Chief Sims had Roth ride patrol with Captain Ray

Leiby “for a couple of weeks so that he could be reacclimated to West Salem and his duties,”


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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

after which Roth went back on patrol. Roth’s time in Iraq during his first deployment apparently

affected his approach to police work. Many of Roth’s colleagues in the Marines were killed

during his deployment, some in ways Roth felt had been preventable. As a result, Roth became

extremely sensitive to decisions by superiors that Roth saw as putting the lives of Roth’s

colleagues at risk. At the West Salem Police Department, Roth perceived Chief Sims and one

other colleague as incompetent.      Tina Barnette, the Department’s administrative assistant,

testified that Roth’s colleagues were aware that Roth was dissatisfied. In spite of these tensions,

Chief Sims only recalled having one issue with Roth in the period between his two deployments:

Chief Sims wrote Roth a letter asking him not to work hours beyond his scheduled shift without

Captain Leiby’s or his permission. (Working extra hours was a problem because of budget

constraints.)

       When Roth was again deployed to Iraq in May 2008, both he and Chief Sims expected

him to return to the West Salem Police after his deployment. Chief Sims requested and obtained

an extension for Roth to complete state-mandated continuing training requirements that he could

not complete while deployed. Roth, meanwhile, kept in touch with Barnette via email from Iraq

and expressed, in her paraphrase, that he had “a big vision” for changes to the police department.

       Roth’s relationship with the leadership of the police department deteriorated quickly after

he returned from his second deployment in the summer of 2009. While still in Iraq, Roth learned

that a fellow patrolman, Dozier Hendershot, had been promoted to sergeant ahead of him. Prior

to returning to the force, Roth emailed a friend and fellow patrolman, George Paine, expressing

that he was “upset” about this development. Nonetheless, he took a training course paid for by

West Salem in August 2009 in preparation for returning to the police force. Upon resuming

work in September, Roth expressed to Captain Leiby his “[d]isappointment in not being


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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

promoted, as well as [his belief] that the department had violated USERRA [the Uniformed

Services Employment and Reemployment Rights Act] in promoting someone without a test or

any form of board.” Captain Leiby essentially brushed aside Roth’s complaint. As Roth recalls

the conversation, Captain Leiby said something to the effect of “Combat veterans probably

shouldn’t be promoted anyway because they don’t understand, because it’s a different world

between the military and law enforcement.”

       The decision to promote Hendershot over Roth had been made by Chief Sims, in

consultation with Captain Leiby. Chief Sims and Captain Leiby considered Hendershot, Roth,

and a few other patrolmen. Chief Sims saw Hendershot as the best choice for a number of

reasons. Comparing Roth and Hendershot, Chief Sims claimed that Hendershot was easier to

work with, had incurred no citizen complaints, and could be relied on to follow orders, whereas

this was not always the case with Roth. Chief Sims also noted that Hendershot was the only

patrolman who did not have any other job and was willing to take on a large amount of hours,

which Chief Sims interpreted as a sign of loyalty.

       Roth’s return to his patrolman position in the shadow of this controversy was short-lived.

After Roth had worked only three non-consecutive shifts over the course of a few days, Chief

Sims, after consulting with Captain Leiby, instructed Roth not to return to active patrol pending

Roth’s completing an anger management class and passing a psychological examination. Chief

Sims hand-delivered a letter to Roth explaining his decision and listing concerns about Roth’s

performance. The letter emphasized the following specific issues:

   1. Roth displayed an “aggressive demeanor” to Barnette, the administrative
      assistant, and as a result “she does not feel safe at work when [Roth is] around.”

   2. Roth was “rude” to his colleagues and “insubordinate” to the administration,
      leading some of the colleagues to “avoid talking to [him], so they do not get


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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

       involved in any situation [he] may find [himself] in while working [at the police
       department].”

   3. Roth took a department radio home without permission, contrary to a standing
      policy that officers working relatively few hours should leave radios for others at
      the end of their shifts.

   4. On his second shift of duty after resuming work, Roth worked extra hours without
      permission or any clear justification, just as he had done when he received a
      caution letter in 2007.

   5. Also during his second shift of duty, Roth stopped a motorist “for no reason, other
      than [Roth] thought he looked suspicious.” This resulted in a complaint to the
      police department from that motorist.

   6. Captain Leiby attempted to discuss some of these issues with Roth, but Roth
      “argued with him” and became “aggressive and angry.”

       In order to “protect the workers and citizens of West Salem from an angry police officer,”

Chief Sims decided to suspend Roth from patrol duties without firing him. The letter laid out a

procedure for being reinstated to patrol duty:

       [Y]ou will not be scheduled to work the street as a patrolman until such time as
       you are able to complete an anger management class and obtain a psychological
       exam by a doctor qualified to perform such examinations on police officers to
       determine your suitability to work in the field of law enforcement. Upon
       successful completion, you will meet with me and the Mayor. You may be asked
       to ride a few shifts to be reintroduced to representing the Village of West Salem
       as a patrolman.

       This procedure, which Roth ultimately did not complete, was beset by delays. Chief

Sims assumed Roth would get anger management counseling for free or at a subsidized rate at

the VA. Roth eventually did, earning a certificate of completion of “cognitive processing

therapy” on May 25, 2010. Although Roth provided the certificate of completion to Captain

Sims, Chief Sims did not contact Roth about scheduling the psychological examination until

October 6, 2010. Dr. John Jorden conducted the examination and sent a summary of the results

to Chief Sims (with a copy to Roth) on December 10, 2010. The report indicated that Roth had

“had temper and control issues,” and “showed signs of unresolved grief and PTSD.” The report

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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

also stated that Roth “no longer wants to work with the current situation at West Salem” and

“plans to go on to [l]aw [s]chool.” Dr. Jorden did not approve Roth’s return to active duty, but

also stated that “[p]eople and situations change,” suggesting that Roth might be able to return at

some point in the future.

       On February 8, 2011, Chief Sims sent Roth a letter asking whether Roth still intended to

return to the West Salem police. Roth received the letter but never responded. On March 9,

Chief Sims sent Roth a second letter warning Roth that if he did not respond by March 22, his

failure to do so would be treated as a resignation and his position with the police department

would be terminated. Roth also received this letter but did not respond. Roth was terminated on

March 22; the termination form listed him as having “resigned.”

       Roth filed suit against the West Salem Police Department on February 14, 2013. He filed

an amended complaint substituting as defendant the Village of West Salem (which was his

formal employer). The complaint alleged that the police department discriminated against Roth

on the basis of disability in violation of the Ohio Civil Rights Act (OCRA) and that the

department’s failure to promote Roth and his termination both violated USERRA. Following

discovery, the Village of West Salem moved for summary judgment. The district court granted

the Village’s motion on July 1, 2014. The district court found no evidence in the record

supporting a conclusion that the police department’s promotion of Hendershot over Roth was

connected to Roth’s military service, instead noting the performance- and loyalty-related reasons

provided by Chief Sims. The district court next held that Roth had not been terminated in

violation of the USERRA because his failure to respond to Chief Sims’s letters following his

psychological evaluation amounted to a resignation, so there was no adverse action by the

department.    Finally, the district court found no triable issue of fact as to the OCRA


                                               -6-
No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

discrimination claim because requiring a psychological examination to determine whether Roth

could perform his duties was not an “adverse action.” Accordingly, the district court granted

summary judgment to the Village. Roth appeals.

       Roth did not raise a triable issue of fact as to whether Chief Sims’s decision to promote

Hendershot to sergeant ahead of Roth was motivated by Roth’s military service. Even if the

employee bringing a USERRA claim can demonstrate that the employer’s adverse action was

motivated by animus against the employee’s protected status, the employer may still prevail by

proving that it would have taken the adverse action even absent that illicit motivation. Hance v.

Norfolk S. Ry. Co., 571 F.3d 511, 518 (6th Cir. 2009). Although Roth did present circumstantial

evidence that Captain Leiby may have harbored unlawful animus against Roth and may have

influenced Chief Sims, Roth cannot rebut the Village’s evidence showing that he would not have

been promoted even absent his military service.

       First, Roth’s failure-to-promote claim depends entirely on the decision to promote

Hendershot. Although Paine was also promoted to sergeant, Paine was promoted after Roth had

been terminated. The termination was reason enough not to promote Roth, provided that the

termination was not itself unlawful, a question addressed below. Roth’s arguments relating to

Paine’s promotion and the reasons for it are therefore not relevant.

       Roth has arguably presented evidence that might convince a reasonable jury that his

military service was a motivating factor in the decision to promote Hendershot over him.1

Roth’s allegation that Captain Leiby said something along the lines of “Combat veterans



1
  The Village’s argument that Roth is not entitled to a promotion (an argument that refers to the
reemployment protections of 38 U.S.C. § 4312) is inapposite. Roth does not claim that he was entitled to
an automatic promotion upon reemployment, but rather that the police department discriminated against
him on account of his military status in deciding whom to promote, a claim that invokes the anti-
discrimination provisions of 38 U.S.C. § 4311.
                                                  -7-
No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

probably shouldn’t be promoted . . . because they don’t understand, because it’s a different world

between the military and law enforcement” could reasonably be interpreted as reflecting animus.

This animus, if it existed, could have played a role in the promotion decision, as Chief Sims

consulted with Captain Leiby when deciding who to promote.

       However, there is no liability under the antidiscrimination provision of USERRA if “the

employer can prove that the action would have been taken in the absence of” the plaintiff’s

protected military status or activity—in which case any animus was neither the but-for nor the

proximate cause of the adverse action. 38 U.S.C. § 4311(c)(1); see Escher v. BWXT Y-12, LLC,

627 F.3d 1020, 1030 (6th Cir. 2010). The Village has made such a showing, and Roth has not

rebutted it. Chief Sims identified the factors that he considered in promoting Hendershot:

availability to work long hours, ability to follow orders and work smoothly with superiors, and

absence of citizen complaints. Roth has not cast doubt on the conclusion that, applying these

factors, Hendershot’s promotion was justified. At the time that the promotion decision was made

during Roth’s second deployment, Roth had already been the subject of a citizen complaint, he

had already experienced conflicts with coworkers and been reprimanded for not following

orders, and (when not deployed) he had another job that limited his availability. Roth’s only

argument is that the lack of a formalized selection process suggests that Chief Sims’s reasons

might be pretextual. But it is reasonable for a small police department such as that of West

Salem to make personnel decisions informally, and the factors Chief Sims used also appear

reasonable.   Roth has therefore failed to present a triable issue as to whether the police

department’s failure to promote him violated USERRA.

       Roth has also failed to raise a triable issue as to the motivations for his suspension and

ultimate termination. Although his suspension was an adverse action for purposes of USERRA


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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

and he might possibly show that it was motivated by animus against his military service or

veteran status, he cannot rebut the Village’s non-discriminatory reasons for suspending him. A

cat’s paw theory of liability tying Captain Leiby’s bias to Chief Sims’s actions is still

theoretically available, and, though the evidence is more tenuous, Captain Leiby’s allegedly

biased statement is still applicable to Roth’s suspension. However, again, the Village presented

significant unrebutted evidence that Roth would have been suspended even absent his military

service and veteran status. If this conclusion is correct, then the delays in the post-suspension

process and Roth’s ultimate abandonment of his position do not raise concerns under USERRA.

       While the district court was correct that Roth’s termination, in and of itself, was a

resignation that cannot be an adverse action, the focus should instead be on Roth’s suspension

prior to his termination. If the suspension was indeed based on antimilitary bias, and if Chief

Sims intentionally impeded Roth from meeting the conditions for reinstatement, then Roth was

de facto terminated in violation of USERRA. Moreover, the suspension itself was an adverse

action for purposes of USERRA, which broadly protects “initial employment, reemployment,

retention in employment, promotion, or any benefit of employment.” 38 U.S.C. § 4311(a).

Thus, the Village’s liability turns on the motivation for Roth’s suspension.

       We assume for purposes of argument that Roth has presented a plausible case that there

was illicit animus affecting Roth’s suspension.       Again, it is possible that Captain Leiby’s

statement about promoting combat veterans reflects an anti-veteran bias, although to be

applicable here it would have to be a general bias against combat veterans in the police force,

rather than a bias against promoting them. However, again, there is strong evidence that Chief

Sims and Captain Leiby relied on valid reasons unrelated to Roth’s military status in suspending




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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

Roth, and that they would have done so even absent Roth’s military status. Roth is unable to

rebut enough of this evidence to raise an issue of triable fact.

        True, Roth may have created a genuine issue of fact with respect to the validity of two of

the reasons: Captain Leiby’s report regarding Roth’s aggressive demeanor and uncooperative

attitude, and his taking a police radio home with him. Because it is possible that Captain Leiby

was biased against Roth, it is possible that Captain Leiby’s report of Roth’s bad attitude was

tainted by this bias. There is no direct connection between the police radio incident and any

potential bias, but it is plausible, as Roth has suggested, that Roth was unaware of the (relatively

recent) rule about taking home police radios and ought not to have been blamed for taking one

home.

        But Chief Sims’s other reasons for suspending Roth are supported by the evidence and

amply justified suspension. Roth does not dispute that he worked hours beyond his shift without

permission, after already having been warned not to do so in 2007. Barnette’s testimony more or

less corroborates Chief Sims’s report that she felt unsafe because of Roth’s aggressive demeanor.

Although Barnette denies that she actually felt personally threatened by Roth, she believes Chief

Sims reached this conclusion based on her report of “comments he made about the killing of

people and talking about this weapon that he had and things of that nature.” “This weapon” was

a “five thousand dollar assault weapon” that Roth had purchased, not his service weapon, and

“killing somebody” referred to Roth “not having a problem killing somebody if he were to have

to do that.” Barnette testified that hearing this made her “greatly concerned, not only for myself,

but also for him.” This testimony corroborates the gist of Chief Sims’s allegation that Barnette

said that Roth displayed an aggressive demeanor and frightened her.




                                                 -10-
No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

       Barnette’s testimony also corroborates Chief Sims’s allegation that other officers found

Roth insubordinate and rude. Barnette testified that other officers said Roth was “insubordinate”

and “didn’t have respect for the chief,” and that “some of the part-time officers” complained

about his “attitude and demeanor,” saying he was “hard to get along with” and “not a team

player.” This allegation is also corroborated to some extent by Roth himself, who admitted that

he is unwilling to obey orders that will put his colleagues in danger and will not remain silent if

he sees things being mismanaged, and Roth’s expert Dr. Richetta, who noted that Roth “would

be likely to have administrative conflicts with superiors in a work place.”

       Finally, there is some evidence suggesting that the citizen complaint about Roth making a

traffic stop without probable cause is accurate. Both Barnette and Chief Sims recall speaking

with a motorist who reported that Roth executed a military-style stop (pulling in front of the

stopped car to block it rather than pulling up behind). After receiving the citizen’s complaint,

Chief Sims asked Roth for his version of the event, and recalls having the following exchange: “I

asked what about the vehicle was suspicious. His reply, it was driving around at West Salem at

that hour.” Because Chief Sims’s report of Roth’s statement is not hearsay under Fed. R. Evid.

801(d)(2)(A), there is admissible evidence that the stop occurred and that Roth did not have

probable cause to make the stop. (Roth himself does not recall whether the stop occurred or not.)

Barnette’s and Chief Sims’s statements about the citizen’s complaint (which are the only source

of information about how Roth conducted the stop) are hearsay, but they can still be used to

show the effect of the complaint on the listeners, Barnette and Chief Sims. See Biegas v.

Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009). Showing the effect on Chief Sims is

helpful to the Village because factually false justifications are not pretextual if the decisionmaker

has an “honest belief” in them after conducting a reasonable investigation. Escher, 627 F.3d at


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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

1030. The citizen’s complaint would support a belief that the stop occurred as described, even if

it were false, although Chief Sims performed virtually no investigation other than asking for

Roth’s version of events. Roth’s account may have confirmed enough particulars that Chief

Sims felt that suspension was warranted. Further, given the other concerns Chief Sims had about

Roth’s behavior, it may have been reasonable to limit the time spent on investigation before

acting. At any rate, the admissible and unrebutted evidence that Roth had conducted what

appears to be a completely baseless traffic stop is itself cause for concern, especially in

conjunction with Roth’s general behavior as observed by Barnette and Chief Sims.

       In total, Roth is unable to provide evidence rebutting the majority of the issues identified

in Chief Sims’s letter, including what appear to be the most serious ones. As a result, there is no

triable issue of fact as to whether Roth would have been suspended even absent his military

status. Because Roth’s suspension did not violate USERRA, it follows that his failure to

complete the terms of his suspension, which led to his termination, cannot give rise to liability

under that statute.

       Finally, Roth alleges that his suspension violated O.R.C. § 4112.02(A), which provides

that it is “an unlawful discriminatory practice” for “any employer, because of the . . . disability . .

. of any person, to discharge without just cause . . . or otherwise to discriminate against that

person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter

directly or indirectly related to employment.” On appeal, Roth acknowledges that psychological

evaluations in themselves are not adverse actions, but argues that the suspension pending a

psychological evaluation was a pretense—a way to prevent Roth from working—motivated by

animus against Roth’s disability. However, it was proper to dismiss this claim because Roth




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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

cannot prove that he would have been able to perform his patrol duties in spite of his disability—

mental illness.

       To prevail on this claim, Roth must prove that he was able to perform his patrol duties at

the time that he was suspended, which he cannot do. To establish discrimination on the basis of

disability, a plaintiff must prove not only that he is disabled and that his employer took an

adverse action because of his disability, but that he “can safely and substantially perform the

essential functions of the job in question with reasonable accommodations.” Blankenship v.

Martin Marietta Energy Sys., Inc., 83 F.3d 153, 155 (6th Cir. 1996). Roth does not argue that he

needed any accommodation, and his inability to rebut the allegations in Chief Sims’s letter, as

described above, suggests that Roth was not able to safely perform the duties of a police officer.

This conclusion is supported by both of the psychiatric evaluations that are in the record. First,

Dr. Jorden concluded in December 2010—more than one year after Roth’s suspension, and after

Roth had completed an anger management class—that “Ken is guided by his logical self, but is

having to manage a host of emotional issues which prohibit his being an officer at this time.”

Approximately twenty months later, when Dr. Richetta concluded that Roth could again work as

a police officer, she noted the progress Roth had made:

       Although he has been diagnosed with a Posttraumatic Stress Disorder secondary
       to his military service, the immediate evaluation finds little residual from that
       condition impacting his life now. He has undergone considerable psychotherapy
       including specialized treatment through the VA for service persons with PTSD.
       The PTSD is manageable and is not likely to affect his working as a police
       officer.

This suggests that PTSD did not prevent Roth from functioning as a police officer in the fall of

2012 in part because of the treatment he had received. He received virtually all of this treatment

after he was suspended, since he recalls having been diagnosed with PTSD “somewhere between

June and September, or maybe October” of 2009, around the same time he was suspended.

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No. 14-3704
Kenneth Roth v. West Salem Police Department, et al.

These analyses strongly suggest that in September 2009, with barely-diagnosed PTSD and just a

few months removed from his last deployment to Iraq, Roth was not able to effectively and

safely perform the duties of a police officer.

       For the foregoing reasons, the district court’s grant of summary judgment to the Village

is affirmed.




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