Martin v. Toledo Cardiology Consultants, Inc. , 548 F.3d 405 ( 2008 )

ALICE M. BATCHELDER, Circuit Judge,

dissenting.

I disagree with the majority’s characterization of the fact question at issue, as well as what I view as misapplication of the “honest-belief rule” and its needless and unfair criticism of the district court judge. I respectfully dissent.

I.

Dr. Mohammed Alkhateeb, a Toledo Cardiology employee, presented a signed a memo to Dr. Ameer Kabour, Toledo Cardiology’s CEO, in which he claimed to have overheard Kathleen Martin (the plaintiff in this case) make an ethnic slur during a conversation with another employee in the company break room. Yet another employee, Dawn Hook, confirmed this incident for Dr. Kabour, explaining that Ms. Martin had said that a patient had “smelled like camel shit, like one of those damn Arabs.” Dr. Kabour confronted Ms. Martin with this accusation and, although she protested that she had been misunderstood, she signed a form admitting to the slur and acknowledging the company’s zero-tolerance policy. It bears emphasizing that, although she has since insisted that she never actually said the slur, she signed the admission at the time.

The majority criticizes the district court, repeatedly, on the basis that a material question of fact remained in dispute; that question being whether Ms. Martin actually said the slur, and the dispute being that Ms. Martin contends that she did not. But, the question before us is not whether she actually said the slur — she admitted to Dr. Kabour at the time that she said the slur and even signed an admission. The question, for purposes of her discrimination/retaliation claim, is whether Dr. Kab-our, at the time he imposed the discipline, reasonably or legitimately believed that she said the slur and, in a telling passage from his deposition, Dr. Kabour insists that he did:

I have to say about this statement here [by] Dr. Alkhateeb, who is very gentleman and very straight-forward and very honest guy, and I give him a lot of respect. And when some gentleman like that come[s] in and is very disturbed about a statement made in front of him, and wasn’t really pa[ying] attention— that he was just crossing [through the break room] ... when the statement was made, you know, I have to believe every word he’s telling me, because I trust the guy. I have to say that.

When questioned about his investigation into the accusation, Dr. Kabour explained that he questioned other employees about the incident, to which: “Teri Trimmer did not recall. Kim Bochmeyer, she did not confirm or disconfirm the incident. Dawn Hook confirmed the incident.” When questioned about his confrontation of Ms. Martin, Dr. Kabour explained:

[Martin’s Attorney]: So how did the meeting come about that you had with Kathy Martin regarding the remark?

[Dr. Kabour]: She was called into my office and she was asked about the incident. And she never denied it, but she said that probably she was misunderstood.

[Martin’s Attorney]: Did she admit saying that a patient ‘smelled like an Arab’?

[Dr. Kabour]: She did not commént on that, and I did not ask that question. I asked her specific question: ‘Did you make a statement’ — which is related to that subject as written here by Dr. Alkhateeb — ‘smells like an Arab’?

[S]he said she does not think she made that kind of statement. Probably she was misunderstood.

[Martin’s Attorney]: Okay[,] ... what would you have done if Kathy Martin would have said, ‘I absolutely did not make that statement’?

[Dr. Kabour]: At that time[,] I’m going to get all the witnesses which I heard [ ] were involved, se[at] them around the table, and we’ll see who is [a] liar.

But, because Ms. Martin did not deny making the slur, clearly and unequivocally, and instead signed the admission statement, Dr. Kabour did not gather the witnesses to “see who is [a] liar.”

II.

The majority reverses the district court’s grant of summary judgment to the defendant and, as justification for its decision, accuses the district court, repeatedly, of making a finding of fact (in favor of the defendant) on a genuine question of material fact, which is clearly beyond the bounds of the district court’s authority when deciding a summary judgment motion. But, the majority’s question of fact — whether Ms. Martin actually uttered the offensive slur — is not material; it is inconsequential at this point in time and as an aspect of this particular legal claim. The pertinent consideration is whether Dr. Kabour “honestly believed” the proffered non-discriminatory reason for his action, see Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir.2001); i.e., whether Dr. Kabour honestly believed that Ms. Martin had uttered the slur, based on “a reasonably informed and considered decision,” see Smith v. Chrysler, 155 F.3d 799, 807 (6th Cir.1998).

At her deposition, Ms. Martin testified to her memory of the confrontation as follows:

[Dr. Kabour] handed me the memo [documenting the accusation], and I said I didn’t say that. I said I want to talk to Dr. Alkhateeb, and [Dr. Kabour] said he thought [that] it would be advisable if I did[,] but I needed to sign the papers first [meaning the papers admitting to saying the slur].

And I just — I said [to Dr. Kabour at the time], you know, I wouldn’t have said something like that. I said, You know me. I said, That’s not who I am, and he really wasn’t open to discussion about it.

Nothing in her testimony suggests that Dr. Kabour did not honestly believe that she had uttered the slur. In fact, her testimony demonstrates as compellingly as his that he was fully convinced. She has not put this question of fact — whether Dr. Kabour believed she said it — -into dispute.

The majority rejects the honest-belief rule on the assertion that “there is a question [of] how reasonable and thorough the inquiry [into the slur] had been” and, as its basis for doing so, relies on a “declaration” by Kimberly Bachmeyer to the effect that Ms. Martin did not utter the slur and that Dr. Kabour never actually inquired of Ms. Bachmeyer about it. But this “declaration” is not an affidavit — it is not notarized or authenticated (it is not even actually signed, containing just an “/s” typed signature) — and, therefore, it is not admissible on summary judgment, see Fed.R.Civ.P. 56(e), as the majority certainly knows. So, reliance on this “declaration” is wholly improper.

Dr. Kabour testified at his deposition that he had received a written and signed accusation from Dr. Alkhateeb, whom he trusted; had inquired of three possible witnesses; and had confronted Ms. Martin herself. In addition to Dr. Kabour’s deposition, the record contains depositions by Dr. Alkhateeb and Ms. Hook, among others — though, notably, not Ms. Bachmeyer. Dr. Alkhateeb testified to his hearing Ms. Martin say the slur, reporting it to Dr. Kabour, and preparing and signing the written accusation to document the incident. Dr. Alkhateeb also testified that Ms. Martin had approached him later and apologized. Ms. Hook testified unequivocally that she had heard Ms. Martin say the slur, though Ms. Hook was not questioned about the ensuing investigation.

III.

There is no basis to conclude, as the majority does, that Dr. Kabour’s inquiry was not reasonable or thorough, or that Dr. Kabour’s belief that Ms. Martin uttered the offensive slur was not honestly held. I would affirm the judgment of the district court.