Pam Hale v. Mercy Health Partners , 617 F. App'x 395 ( 2015 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0270n.06
No. 14-3522 FILED
Apr 14, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
PAM HALE, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE SOUTHERN
MERCY HEALTH PARTNERS, )
DISTRICT OF OHIO
)
Defendant-Appellee. )
)
)
BEFORE: SILER, GRIFFIN, and WHITE, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Pam Hale worked for defendant Mercy Health Partners until she was fired for
modifying her timesheets and failing to comply with Mercy’s timekeeping rules. She alleges
that her termination violated, among other things, the Age Discrimination in Employment Act,
and the public policy of the state of Ohio. The district court granted Mercy’s motion for
summary judgment on all claims, and Hale appealed. For the reasons set forth below, we affirm.
I.
Hale, who was forty-four years old at the time of her termination, was a buyer for Mercy.
She began working for Mercy in 1999 and continued until 2011, when she was terminated for
violating Mercy’s timekeeping policy. Although Hale split her time between Mercy’s Anderson
and Clermont campuses, she spent most of her time at the Anderson campus.
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Hale was primarily responsible for controlling inventory and purchasing drugs for use at
Mercy’s Anderson hospital. She was also the primary timekeeper for the Anderson pharmacy;
that meant she “did the edits” for her coworker’s timesheets and overtime records. As a
timekeeper, Hale was responsible for editing and sometimes approving other Mercy Anderson
pharmacy employees’ timesheets.
Mercy’s policy requires its employees to record time by clocking in and out over a phone
system. Hale attended a training in 2008 regarding proper timekeeping procedures. There, she
was advised that “timekeepers may not edit timecards . . . in any . . . way . . . to change the time
actually worked by the employee;” and that “a timekeeper falsifying or tampering with
employees’ timecards can . . . be a reason for . . . termination.”
Despite this training, instead of using the phone system to clock in and out, in accordance
with Mercy’s policy, Hale would note her time and later enter her hours into the computerized
time system. When she worked offsite, or from home, Hale would alter her time records to add
time accordingly.
On June 10, 2011, Hale spoke on the phone with a Drug Enforcement Agency (DEA)
agent who asked her about the Clermont campus’s recordkeeping regarding drugs that were
ordered for the Clermont campus but used at Mercy’s offsite emergency room in Mt. Orab. Hale
told the agent that she always properly filed the correct DEA forms, but could not be sure that
other buyers did the same. Hale called her supervisor, Bill Carroll, and informed him that the
DEA was “checking on the Mt. Orab situation,” but did not tell any other Mercy personnel about
the call.
About an hour before Hale received the phone call from the DEA, Mercy Clermont’s
CEO, Gayle Heintzelman, received a phone call about an inventory problem from a pharmacist.
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The pharmacist contacted Heintzelman because he could not locate Hale. Concerned about
Hale’s absence, Heintzelman emailed Laura Gaynor, a senior human resources consultant at
Mercy Clermont, and ordered her to audit Hale’s time records to determine how much time Hale
was spending at each Mercy facility. Gaynor conducted the audit and emailed Heintzelman that
the results were “very interesting.” Gaynor sent the results of the audit to Mercy’s human
resources director, Shelly Sherman. Gaynor told Sherman that, although Hale was scheduled to
spend forty hours per pay period at Clermont, she averaged only sixteen hours per pay period.
The audit also revealed that Hale: (1) had not clocked in or out using the phone system for all
four pay periods covered by the audit, despite being within the class of employee required to use
the phone system; (2) edited her own time, including some “questionable edits” such as “adding
an hour to her clock out 3 days later”; (3) claimed time worked before actually entering the time;
(4) repeatedly failed to clock out for lunches and edited her timesheets days later; and
(5) submitted two self-approved timesheets and some with no approval at all. Gaynor forwarded
these same findings to Heintzelman.
On June 14, 2011, Hale was told that she was to meet with Heintzelman at 2:00 that
afternoon. She told Carroll about the meeting ahead of time, and Carroll did not know the reason
for the meeting. However, prior to the 2:00 meeting, Carroll met with Sherman and
Heintzelman, who showed him the audit. Sherman and Heintzelman asked Carroll if he could
explain the timesheet discrepancies revealed in the audit; Carroll said he could not. Carroll was
told that if Hale could not explain the discrepancies at the 2:00 meeting, Sherman and
Heintzelman “would move on to termination” and that Carroll was to prepare a schedule without
Hale on it.
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Heintzelman and Gaynor were both present at the 2:00 meeting. Gaynor asked Hale to
review the audit of her timekeeping, which was over twenty pages long. Plaintiff averred she
had not seen a document like it before. Hale asked if she could get her calendar to explain the
edits to her timekeeping, but Gaynor refused. Gaynor and Heintzelman asked Hale to explain
the edits, but she could not; however, Hale did not deny making the edits. Hale now admits that
what she did was unethical, but insists that it was how she was trained to enter her time.
According to Heintzelman, when confronted at the meeting with her edits, Hale hung her head
and said “I should not have done it.”
At the meeting, Hale was presented with termination documents. Hale believed that the
decision to terminate her had been made before the meeting. The stated reason for Hale’s
termination was “[f]alsifying timekeeping records” and approving her own timesheet in violation
of the timekeeping policy.
After her termination, Hale filed an internal grievance with Mercy’s resolution team
requesting reinstatement with no timekeeper duties. In her grievance letter, Hale admitted that
“[w]hat [she] did was unethical,” but also claimed that her termination was “unethical.” She
acknowledged that clocking her time by computer rather than by the phone system was
“unacceptable,” but “became a convenience.” The resolution team recommended Mercy uphold
Hale’s termination. Hale’s termination was ultimately affirmed by Mercy’s chief operating
officer.
Hale filed for unemployment compensation benefits. During those proceedings, Hale
successfully subpoenaed her time-records audit, which Mercy had previously refused to provide
her. The Ohio Unemployment Compensation Review Commission hearing officer found that
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Mercy did not establish that Hale “knowingly falsified time records” and concluded that Mercy
terminated Hale without just cause.
The U.S. Equal Employment Opportunity Commission dismissed Hale’s charge of
discrimination on June 29, 2012, and issued a right-to-sue letter. Hale then brought suit in the
district court, alleging age discrimination under the ADEA, 29 U.S.C. §§ 621–634; sex
discrimination under Ohio Revised Code § 4112.02; and wrongful termination in violation of
Ohio public policy. The district court granted Mercy’s motion for summary judgment on all
claims. Hale timely appealed only her ADEA and Ohio public policy claims.
II.
We review the district court’s grant of summary judgment de novo and its findings of fact
for clear error. U.S. ex rel. Wall v. Circle C Constr., L.L.C., 697 F.3d 345, 350 (6th Cir. 2012).
Summary judgment is appropriate when, viewing the facts and drawing all inferences in the light
most favorable to the nonmoving party, “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.” Id. at 351 (internal
citation and quotation marks omitted); see also Fed. R. Civ. P. 56(a). “A genuine issue of
material fact exists when there is sufficient evidence for a trier of fact to find for the non-moving
party”[;] however, “[a] mere scintilla of evidence . . . is not enough for the non-moving party to
withstand summary judgment.” U.S. ex rel Wall, 697 F.3d at 351 (citations and internal
quotation marks omitted).
III.
We turn first to Hale’s ADEA claim. Under the ADEA, it is unlawful for an employer to
discharge an employee who is at least forty years old because of the employee’s age. 29 U.S.C.
§§ 623(a)(1), 631; Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008). Where,
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as here, a plaintiff has no direct evidence of age discrimination, we rely on the familiar
McDonnell Douglas burden shifting framework to determine the “ultimate question” in every
case in which disparate treatment is alleged: “‘whether the plaintiff was the victim of intentional
discrimination.’” Geiger v. Tower Auto., 579 F.3d 614, 620, 623 (6th Cir. 2009) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)).
Under the McDonnell Douglas framework, the plaintiff must first state a prima facie case
by showing “1) that she was a member of a protected class; 2) that she was discharged; 3) that
she was qualified for the position held; and 4) that she was replaced by someone outside of the
protected class.” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir.
2010). Once a plaintiff establishes a prima facie case, “the burden of production shifts to the
employer to articulate a legitimate nondiscriminatory reason for the adverse employment action.”
Id. (citing Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008)). If the employer
satisfies this burden, the burden of production then shifts back to the plaintiff to show that the
employer’s proffered legitimate, nondiscriminatory reason for the adverse employment action
was mere pretext for intentional discrimination. Allen, 545 F.3d at 394. At all times, however,
the ultimate burden of persuasion remains with the plaintiff to show “that age was the but-for
cause of [his or her] employer’s adverse action.” Geiger, 579 F.3d at 620 (internal citation and
quotation marks omitted).
An employer may still prevail at the pretext stage, however, under the so-called honest-
belief rule. That rule states that “[w]hen an employer reasonably and honestly relies on
particularized facts in making an employment decision, it is entitled to summary judgment on
pretext even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless.” Chen v.
Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009) (internal quotation marks omitted). “An
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employer’s pre-termination investigation need not be perfect in order to pass muster under the
rule.” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 591 (6th Cir. 2014) (citing Seeger v.
Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012)). “The key inquiry is instead
‘whether the employer made a reasonably informed and considered decision before taking an
adverse employment action.’” Id. (quoting Seeger, 681 F.3d at 285). “And to rebut an
employer’s invocation of the rule, the plaintiff must offer some evidence of ‘an error on the part
of the employer that is too obvious to be unintentional.’” Id. (quoting Seeger, 681 F.3d at 286).
Here, the parties concede that Hale established a prima facie case under the ADEA. The
dispositive issue is whether Hale has successfully established pretext and, relatedly, whether
Mercy has established that its reasons for terminating Hale fall within the ambit of the honest-
belief rule. We conclude that Hale has failed to establish pretext and that Mercy’s beliefs as to
its reasons for termination were honestly held. We therefore affirm the judgment of the district
court.
Mercy’s proffered legitimate, nondiscriminatory reasons for its termination decision is
that Hale altered her timecards and failed to use the phone system to log her time, as required by
hospital policy. Indeed, the audit performed on Hale’s records indicated that she had altered her
own time, failed to clock in and out using the phone system, spent less time at the Clermont
campus than she was supposed to, and entered hours worked before actually working them. In
short, the findings in the audit indicated that Hale violated the practices explained to her in her
April 2008 training session, where plaintiff was told, among other things, that she “may not edit
timecards to . . . in any . . . way . . . change the time actually worked.” Hale was also told that
altering timecards could be a reason for termination.
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Hale responds that these reasons were pretext and that Mercy did not honestly believe
these reasons. Hale principally argues that Mercy improperly concluded that her alterations to
her timesheets were “falsifications” without giving her an opportunity to explain her alterations
using her calendar. Hale also argues that it was improper for Mercy to have made the decision to
terminate her prior to the termination meeting. We disagree.
It was reasonable for Mercy to infer, based on the alterations plaintiff made to her
timekeeping records—facts on which Mercy relied in its termination decision—that Hale was
falsifying her timecards. Moreover, Hale points to no evidence indicating that defendant was
required to give her an opportunity to explain her conduct before terminating her. There was no
policy or procedure in place at Mercy requiring that employees be given such an opportunity to
explain, nor does Hale argue that she had a due process interest in continued employment
requiring that she be given notice and an opportunity to be heard prior to termination. See
Ludwig v. Bd. of Trustees of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997) (explaining
that in some circumstances, employees have a liberty interest in continued employment and that
such an interest requires that the employee be given notice and an opportunity to be heard prior
to termination). Hale’s only authority for the proposition that she was entitled to an opportunity
to explain her conduct derives from a district court decision from Maryland and a state-law
decision from Connecticut. Obviously, these decisions are nonbinding. And, to the extent they
stand for the proposition that an employer is required to give an at-will employee an opportunity
to offer an explanation for terminable conduct as a matter of law, they are inconsistent with the
law of this circuit, which holds that pre-termination investigations “need not be perfect in order
to pass muster under the [honest-belief] rule.” Loyd, 766 F.3d at 591. For similar reasons, it was
not improper for Mercy to make the decision to terminate Hale prior to meeting with her.
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At the time Mercy fired Hale, it had obtained the timecard audit which revealed Hale’s
misconduct and met with Hale’s supervisor, Carroll, about the audit’s findings. Our precedent
indicates that this was sufficient for Mercy to meet its burden to show that its belief that Hale
falsified records was reasonably informed and therefore honest. See Tingle v. Arbors at Hilliard,
692 F.3d 523, 532 (6th Cir. 2012) (finding an employer’s investigation sufficient to establish an
honest belief where the employer “spoke to witnesses” before issuing a disciplinary report, and
noting that “[t]his court has found far less robust investigations sufficient to substantiate an
honest belief entitling an employer to summary judgment”); Michael v. Caterpillar Fin. Servs.
Corp., 496 F.3d 584, 599 (6th Cir. 2007) (finding an employer’s investigation sufficient to
substantiate its honest belief where it interviewed the plaintiff’s coworkers, even though one of
them testified that the investigation merely “boiled down to ‘he said/she said’”). Hale’s
argument that Mercy failed to give her an opportunity to explain herself demonstrates, at most,
that Mercy’s decision-making process was not optimal. But, simply showing a non-optimal
decision-making process is insufficient to overcome the honest-belief rule. Rather, plaintiff was
required to show that defendant’s decision-making process was “an error . . . too obvious to be
unintentional.” Tingle, 692 F.3d at 531 (internal quotation marks omitted). Hale has failed to do
so.
Hale argues that she never actually “falsified” time records. However, she admits to
altering them. Ultimately, this distinction is immaterial to our conclusion. Under the relevant
legal standards, a defendant is not required to “prove” the underlying truth of its belief. Indeed,
an employer’s belief can still be reasonably informed—and therefore honest—even if it “is
ultimately found to be mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp., 155 F.3d
799, 806 (6th Cir. 1998). Thus, the inquiry is not whether Hale actually falsified her timecards;
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the inquiry is whether, based on the information available to it at the time of Hale’s termination,
Mercy’s belief that she falsified her timecards was reasonable and therefore honest. See McDole
v. City of Saginaw, 471 F. App’x 464, 477 (6th Cir. 2012) (“[I]t does not matter whether the
[defendant] mistakenly believed [the plaintiff] assaulted [a coworker, which was defendant’s
proffered reason for terminating the plaintiff]; it only matters if [the defendant] intentionally
discriminated against [the plaintiff].”). For the reasons stated above, i.e. the discrepancies
revealed by the audit and the discussion with Carroll about it, we conclude that it was reasonable
for Mercy to infer that Hale was falsifying her timecards. However, even if Hale were able to
establish that Mercy’s belief that she falsified her timecards was not honestly held, she could still
not prevail. Mercy’s policy did not provide that termination was a consequence only of
falsification of records. Rather, in the training, Hale was informed she could be terminated for
“edit[ing] . . . or in any other way chang[ing]” timesheets. And, there is ample evidence to
support Mercy’s belief that Hale “change[d]” her timesheets.
Hale also argues that it was improper for Mercy to terminate her for conduct that other,
younger, workers also engaged in. Specifically, she argues that Craig Wright, Abigail
Muchmore, and Donna Branham—all younger workers than Hale—also edited their own
timecards and were not disciplined for doing so. We disagree. Although it is true that
subsequent investigations of other employees’ timekeeping policies revealed that others had
engaged in improper timekeeping conduct similar to Hale and were not fired, this fact does not
change our conclusion. It is undisputed that these separate investigations were conducted after
the decision to terminate Hale. And, this court judges the honesty of an employer’s belief based
on the “particularized facts that were before [the employer] at the time the decision was made.”
Seeger, 681 F.3d at 285 (citation omitted). Thus, Hale cannot show that Mercy’s belief was not
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honestly held because Mercy was unaware of other employees’ similar conduct at the time it
made its termination decision.
Finally, Hale argues that the fact that Mercy gave inconsistent reasons for conducting the
audit on her timesheets is indicative of pretext. Again, we disagree. The ultimate question here
is whether Mercy’s belief that Hale violated Mercy’s timekeeping policy was honestly held.
And, given that there was substantial evidence that Hale did modify her timesheets (including
her own admissions that she did so), we cannot conclude that the fact that Mercy offered
inconsistent reasons for its audit alone shows pretext.
For these reasons, we conclude that Hale has failed to establish that Mercy’s belief that
she altered or falsified her timecards was not honestly held. Hale has accordingly failed to show
that Mercy’s proffered nondiscriminatory reason for termination was pretextual. We thus affirm
the judgment of the district court on Hale’s ADEA claim.
IV.
We next turn to Hale’s Ohio public policy claim. Ohio recognizes a “public policy”
exception to the employment-at-will doctrine. Pytlinski v. Brocar Prods., Inc., 94 Ohio St. 3d
77, 78 (2002). To establish a claim for wrongful termination in violation of Ohio public policy, a
plaintiff must show: (1) “a clear public policy existed and was manifested in a state or federal
constitution, statute or administrative regulation, or in the common law (the clarity element)”;
(2) dismissal “under circumstances like those involved in the plaintiff’s dismissal would
jeopardize the public policy (the jeopardy element)”; (3) “the plaintiff’s dismissal was motivated
by conduct related to the public policy (the causation element)”; and (4) lack of an “overriding
legitimate business justification for the dismissal (the overriding justification element).” Collins
v. Rizkana, 73 Ohio St. 3d 65, 69–70 (1995) (emphases omitted). The first and second elements
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are questions of law for the court to decide, but the jury decides questions of fact relating to the
latter two elements. Id. at 70.
Hale argues that Mercy discharged her in violation of public policy because Hale
responded to the DEA agent’s question, stating that she could not say whether Mercy Clermont
buyers were properly completing required DEA forms. We disagree.
In resolving this claim, we address the elements of the relevant legal test in turn. We first
address the clarity element. To satisfy this element, a plaintiff must point to a specific provision
in the “federal or state constitution[s], federal or state statutes, administrative rules and
regulations, or common law.” Dohme v. Eurand Am., Inc., 130 Ohio St. 3d 168, 174 (2011).
Although this is an employment discrimination case, there is “no requirement that a supporting
statute be employment-related or otherwise set forth an employer’s responsibilities and/or an
employee’s rights.” Alexander v. Cleveland Clinic Found., No. 95727, 2012 WL 1379834, at *6
(Ohio Ct. App. Apr. 19, 2012), perm. app. denied, 132 Ohio St. 3d 1485 (2012).
Hale claims Ohio Administrative Code § 4729-17-03 states the relevant clear public
policy.1 As plaintiff correctly summarizes, that regulation provides that institutional
“pharmacies maintain proper transport and record-keeping processes to ensure the narcotics are
properly accounted for by the pharmacies.”
The district court correctly noted that Ohio courts require that a plaintiff’s claimed policy
parallel Ohio’s whistleblower statute, Ohio Revised Code § 4113.52. To parallel that statute, the
policy on which the plaintiff relies must (1) impose “an affirmative duty on the employee to
1
In opposition to Mercy’s summary judgment motion, Hale also identified another public
policy: Ohio Revised Code § 2921.13(7), which prohibits a person from making a false
statement in connection with a government report. The district court rejected this argument.
Hale does not invoke this statute on appeal.
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report a violation, [(2)] specifically prohibit[] employers from retaliating against employees who
had filed complaints, or [(3)] protect[] the public’s health and safety.” Dean v. Consol. Equities
Realty #3, L.L.C., 182 Ohio App. 3d 725, 729 (2009). We agree with the district court’s
conclusion that Ohio Administrative Code § 4729-17-03 did not parallel the whistleblower
statute because the regulation does not require employees to report violations and does not
prohibit employer retaliation. Nor does the regulation specifically protect Mercy’s patients
because, as the district court noted, it merely imposes “baseline technical requirements that
[institutional pharmacies have] to satisfy to operate.”
Hale argues that we should focus on her decision to comply with the law (i.e., answering
the DEA agent’s question truthfully) and not on whether the regulation is a baseline technical
requirement. She interprets the Ohio regulation to protect her from “retaliation for telling a
government agency that she could not confirm that all of [Mercy’s] employees were complying
with the regulation.” However, Hale does not challenge the district court’s conclusion that the
regulation does not parallel the whistleblower statute. Nor does Hale argue that she was
terminated for reporting a violation of the regulation, or any other statute or rule. Thus, Hale has
failed to establish the clarity element of the test for wrongful termination under Ohio law.
We next turn to the jeopardy element. We have applied a three-part test for determining
whether a plaintiff has satisfied the jeopardy element. We must:
(1) determine what kind of conduct is necessary to further the public policy at
issue; [(2)] decide whether the employee’s actual conduct fell within the scope of
conduct protected by this policy; and (3) consider whether employees would be
discouraged from engaging in similar future conduct by the threat of dismissal.
Avery v. Joint Twp. Dist. Mem’l Hosp., 286 F. App’x 256, 264 (6th Cir. 2008) (quoting Himmel
v. Ford Motor Co., 342 F.3d 593, 599 (6th Cir. 2003)). In addition, the “employee’s statements
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must indicate to a reasonable employer that [she] is invoking governmental policy in support of,
or as the basis for, [her] complaints.” Avery, 286 F. App’x at 265 (internal quotation marks
omitted). Here, although we agree with Hale that reporting record keeping violations would
further the public policy embodied in § 4729-17-03, it is not clear that Hale ever reported
anything to anyone. When contacted by the DEA agent, Hale was asked whether she complied
with record keeping requirements, and she reported that she did. She did not, however, report
any violations, informing the DEA agent that she did not know whether others were out of
compliance.
For these reasons, Hale has failed to establish two essential elements of an Ohio public
policy claim. Because she was required to establish all five, her public policy claim fails, and,
thus, we conclude that the district court did not err by granting summary judgment in Mercy’s
favor on this claim.
V.
For the foregoing reasons, we affirm the district court’s grant of summary judgment in
favor of Mercy.
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HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I agree the district court properly entered summary judgment on Hale’s public-policy
claim; however, I do not agree that summary judgment was appropriate on her age-
discrimination claim. By failing to view the record in the light most favorable to Hale, and
misapplying the applicable law, the majority erroneously concludes that Hale failed to prove that
Mercy did not honestly hold a belief that it discharged Hale because she falsified her
timekeeping records. To the contrary, a jury could reasonably conclude that Mercy’s proffered
reasons for dismissing Hale were not honestly held and were pretext for unlawful age
discrimination.
I.
The majority missteps at the beginning of its analysis of Mercy’s honest-belief defense
when it states “Mercy’s proffered legitimate, nondiscriminatory reasons for its termination
decision [are] that Hale altered her timecards and failed to use the phone system to log her time,
as required by hospital policy.” Maj. Op. 7. Although Gaynor identified those reasons as
“serious” problems if Hale could not explain them, Mercy in fact dismissed Hale, according to
the discharge letter, for “[f]alsifying timekeeping records” and “[a]pproving own time sheet.”1
Thus, the relevant question is whether Mercy honestly believed Hale falsified her time records
and approved her own timesheet in violation of its policy.
1
The majority also holds that “there is ample evidence to support Mercy’s belief that
Hale ‘change[d]’ her timesheets.” Maj. Op. 10 (alteration in original). This was not a basis for
Mercy’s decision, and even if it were, Mercy’s policy does not prohibit all “change[s]” to one’s
timesheet but rather “edit[s] [to] timecards to . . . change the time actually worked.” (Emphasis
added.) The record evidence supports that Hale edited her timesheets to reflect the time she
actually worked—not to steal time.
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There is no record evidence that Hale falsified her timesheets, i.e., recorded hours she did
not actually work. But the majority concludes that it was reasonable for Mercy to infer from the
timecard alterations that Hale falsified her time records. That conclusion belies the facts.
According to Heintzelman, Mercy’s termination process includes a discussion with the employee
“to go through what the issues are” and if the employee cannot satisfactorily explain the alleged
misconduct, “then we move to the next step[,] which would be termination according to our
policies.”2 Accordingly, Mercy provided Hale a termination hearing, and, as Heintzelman
testified, warned Hale that if she could not explain the alterations, she would be discharged.
Thus, contrary to the majority’s view, Mercy inferred from Hale’s failure to explain the edits that
she falsified her time—not from the alterations themselves. And that inference is unworthy of
credence.
Mercy’s decision to dismiss Hale was not reasonably informed and considered. Blizzard
v. Marion Technical Coll., 698 F.3d 275, 286 (6th Cir. 2012). At the termination hearing, Mercy
denied Hale’s request to consult her calendar and other sources to aid her in explaining her
timecard edits, even though it had asked her for an explanation. Under the modified-honest-
belief rule, the employee “must be afforded the opportunity to produce evidence to the contrary.”
Id. (internal quotation marks omitted). But because Mercy assumed without proof that Hale stole
time, it did not reasonably rely on the “particularized facts that were before it at the time the
decision was made.” Id. (internal quotation marks omitted). Had Mercy sought to make an
informed and considered decision, it would have afforded Hale a meaningful opportunity to
2
For this reason, the majority is incorrect that “Hale points to no evidence indicating that
defendant was required to give her an opportunity to explain her conduct before terminating
her.” Maj. Op. 8.
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explain the timecard alterations and allowed her to consult her calendar.3 Moreover, Hale’s
supervisor, Bill Carroll, had offered an explanation before the discharge meeting for Hale’s
timecard edits,4 but it does not appear Mercy considered the proffered explanation, despite
Heintzelman’s testimony that Mercy would have investigated any explanation given.
II.
Viewing the evidence in the light most favorable to Hale, and considering the totality of
the evidence, Hale has shown that Mercy’s reasons were pretextual. A jury could reasonably
find that Mercy’s rationales were pretext for unlawful discrimination because, coupled with a
showing that Mercy did not hold an honest belief in the reasons for discharging Hale, Mercy
offered conflicting reasons for auditing Hale’s time records and did not discipline Abigail
Muchmore, the 30-year-old buyer in Mercy Clermont’s pharmacy, even though she also altered
her timesheets.
Mercy claims Heinzelman ordered the audit of Hale’s time records at 10:00 a.m. after a
Mercy Clermont pharmacist informed her that he had an inventory issue and could not locate
Hale to resolve it. Heintzelman did not attempt locate or contact Hale, or any other personnel in
the pharmacy, including Muchmore, who was the Mercy Clermont buyer. The record supports
four other explanations for the audit: (1) Hale averred that Gaynor told Hale in the termination
meeting that Mercy reviewed Hale’s time records as a result of a random audit; (2) According to
a June 10, 2011, 6:39 p.m. email, Heintzelman asked Gaynor if Hale “clocked out or marked
3
Although Hale also admitted that she occasionally approved her own timesheets,
Heintzelman and Gaynor did not question Hale on this alleged violation of Mercy’s policy,
which formed a basis of her dismissal. Mercy’s failure to investigate the alleged violation is
additional evidence that Mercy did not reasonably rely on an informed and considered decision.
4
Carroll told Heintzelman that Hale’s after-the-fact added time could be due to Hale
attending offsite meetings.
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No. 14-3522
Hale v. Mercy Health Partners
herself out” after receiving a 4:39 p.m. email from the pharmacist saying he could not locate
Hale; (3) Gaynor testified that Heintzelman ordered the audit a couple of weeks before June 10,
2011, to determine the amount of time Hale was spending at Mercy Clermont; and (4) Another
HR consultant, Angie Ferrell, told Mercy’s third-party administrator that Mercy investigated
Hale’s time records because her “manager became concerned that abuses of the timekeeping
system were occurring,” which Carroll disputed.
Hale contends that these inconsistent explanations for the audit of her time records
support an inference of pretext because the record “shows a cover-up and an incredible
explanation of why [Hale] was singled out for a completely unnecessary time-card audit.”
Indeed, Mercy’s inconsistent reasons and unequal treatment of Hale in relation to Muchmore
who was the buyer for the pharmacy involved tend to support a finding that Hale’s alleged policy
violations did not actually motivate Mercy’s decision to discharge her. See Tinker v. Sears
Roebuck & Co., 127 F.3d 519, 523 (6th Cir. 1997).
Further, Mercy’s pharmacy department employees, including Muchmore, had for years
recorded time as Hale did, and the pharmacy director himself testified he was unware of Mercy’s
policy prohibiting alterations of timecards. Despite learning that Muchmore engaged in the same
conduct as Hale, Mercy did not discipline or dismiss Muchmore. Mercy’s adherence to its
timekeeping policies—strictly in Hale’s case and not at all in Muchmore’s—precludes summary
judgment.
For these reasons, I concur in part and dissent in part.
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