Kozlevcar v. Tom Ahl Buick, Inc., No. 3:05CV07483, 2007 WL 2344782 at *5 (N.D. Ohio Aug 15, 2007). Instead, the evidence must require the conclusion that unlawful discrimination was the but-for cause of the employer's actions. Pelcha v. MW Bancorp, Inc., 455 F.Supp.3d 481, 497 (S.D. Ohio 2020), aff'd, 984 F.3d 1199 (6th Cir. 2021), opinion amended and superseded, 988 F.3d 318 (6th Cir. 2021), and aff'd, 988 F.3d 318 (6th Cir. 2021). Courts in Ohio hold that “direct” evidence is “smoking gun” evidence “that explains itself.”

To establish a prima facie case of age discrimination under the ADEA, a plaintiff must show (1) that he is a member of a protected class, i.e., over 40 years old, (2) that he suffered an adverse employment action, (3) that he was qualified for the position, and (4) circumstances that raise a plausible inference of discrimination. Id. at 326 (citing Geiger v. Tower Auto., 579 F.3d 614, 622-23 (6th Cir. 2009)); accord Pelcha v. MW Bancorp, Inc., 455 F.Supp.3d 481, 502 (S.D. Ohio 2020), aff'd, 984 F.3d 1199 (6th Cir. 2021), opinion amended and superseded, 988 F.3d 318 (6th Cir. 2021), and aff'd, 988 F.3d 318 (6th Cir. 2021).

Although Browning argues to the contrary, he has not identified any direct evidence of retaliation or his other claims, as discussed later. See Pelcha v. MW Bancorp, Inc., 455 F.Supp.3d 481, 497 (S.D. Ohio 2020) (“‘[D]irect' evidence is ‘smoking gun' evidence ‘that explains itself.'” (citations omitted)); see also Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997) (“It is the rare situation when direct evidence of discrimination is readily available ....” (citation omitted))

1. Direct Evidence Direct evidence is evidence that “does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.” DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (citation omitted), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009); see also Pelcha v. MW Bancorp, Inc., 455 F.Supp.3d 481, 497 (S.D. Ohio 2020) (“‘[D]irect' evidence is ‘smoking gun' evidence ‘that explains itself.'” (citation omitted)). To constitute direct evidence, it “must establish not only that the plaintiff's employer was predisposed to discriminate on the basis of [FMLA leave], but also that the employer acted on that predisposition.”

how closely related the evidence is to plaintiffs circumstances and theory of the case." Pelcha v. MW Bancorp, Inc., 455 F.Supp.3d 481,508 (S.D. Ohio 2020) (internal quotations omitted).

But certainly not always.” Pelcha v. MW Bancorp, Inc., 455 F.Supp.3d 481, 506 (S.D. Ohio 2020) (Cole, J.) (citations and quotations omitted), aff'd, 984 F.3d 1199 (6th Cir. 2021), opinion amended and superseded, 988 F.3d 318 (6th Cir. 2021); see also Moore v. City of Clarksville, No. 3:10-0141, 2011 WL 2938459, at *6-7 (M.D. Tenn. July 19, 2011) (“Exact comparators are often hard to come by, and whether any two employees are similarly situated often presents a question of fact for the jury.”)

One problem Goldblum faces is that she does not admit the factual basis for the University's adverse employment decision. Pelcha v. MWBancorp, Inc., 455 F.Supp.3d 481, 509 (S.D. Ohio 2020).

See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 357 (6th Cir. 1998) (“[u]nder Ohio law, the elements and burden of proof in a state-age discrimination claim parallel the ADEA analysis”); Pelcha v. MW Bancorp, Inc., 455 F.Supp.3d 481, 496 (S.D. Ohio 2020) (“Due to the similarity of the two statutes, when a plaintiff advances claims under both the ADEA and Ohio law in federal court, the two claims are analyzed together using the same federal standard.”)

For example, ageist comments that fall short of meeting the test for direct evidence of discrimination may suffice to establish the fourth prong of the McDonnell Douglas prima facie case. See Pelcha v. MW Bancorp, Inc., No. 1:17-cv-497, 2020 WL 1904714, *8-11 (S.D. Ohio Apr. 17, 2020) (Cole, J.) (collecting cases). Here, though, the only two types of evidence either side discusses are the two "typical" categories discussed above.