                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0129n.06

                                      Case No. 19-3681

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                         Mar 04, 2020
ROBYN SMITH,                                      )                  DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellant,                       )
                                                  )      ON APPEAL FROM THE UNITED
v.                                                )      STATES DISTRICT COURT FOR
                                                  )      THE SOUTHERN DISTRICT OF
TOWNE    PROPERTIES       ASSET                   )      OHIO
MANAGEMENT COMPANY, INC.,                         )
                                                  )
       Defendant-Appellee.                        )


       BEFORE: MERRITT, THAPAR, and LARSEN, Circuit Judges.

       THAPAR, Circuit Judge. Mistakes happen. Including in the context of employment

decisions. But not every mistake amounts to actionable employment discrimination. That’s the

lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she

had been stealing from one of the company’s clients. Smith can’t proceed on her discrimination

and retaliation claims because there’s insufficient evidence to show that her firing wasn’t

motivated by her employer’s (mistaken) belief that she had been engaging in theft or dishonest

acts. We affirm.

       Smith used to work for Jack and Cynthia Brauer, who owned apartment complexes in Ohio.

The Brauers eventually hired Towne Properties to manage those apartment complexes. At that

point, Smith became a Towne employee, and she moved to a different facility. She worked there

as a community manager and lived rent free.
Case No. 19-3681, Smith v. Towne Properties Asset Management Co., Inc.


       Several years later, Smith was diagnosed with pseudotumor cerebri—a condition caused

by spinal fluid pressure on the brain. The symptoms of pseudotumor cerebri, which mimic a brain

tumor, include migraines, blurred vision, vertigo, and short-term memory loss (just to name a few).

Because that condition made it difficult for Smith to perform her job, she took several absences

under the Family and Medical Leave Act. Smith took those absences without incident.

       But in July 2015, another Towne employee made some troubling allegations. This

employee privately told Towne’s management that Smith was coding her gas and electricity bills

to vacant Fieldstone apartments (one of Towne’s clients)—in effect, stealing thousands of dollars

from Fieldstone. Then he accused Smith of sending her water bill to Fieldstone instead of paying

it herself. And then he accused Smith of using two garages instead of one. After Towne

investigated these allegations, Towne fired Smith for engaging in theft or dishonest acts.

       As it turns out, Cindy Brauer believed Smith was entitled to free utilities back when she

worked for them. And Towne found that out shortly after it fired Smith. But Towne didn’t

reconsider its decision to fire Smith.

       So Smith sued Towne under the Americans with Disabilities Act and the Family and

Medical Leave Act, alleging disability discrimination along with FMLA discrimination and

interference. The district court granted summary judgment to Towne. This appeal followed.

       ADA Claim. Smith claims that Towne violated the ADA by firing her based on her

disability. But Towne insists that it fired Smith because she misappropriated utilities to the tune

of about $14,000 and hadn’t been paying for the parking garage.

       To win on her claim, Smith must show (among other things) that Towne’s explanation for

firing her was pretext for disability discrimination. In other words, that the neutral explanation is

simply cover for a discriminatory motive. Smith can’t show a trialworthy dispute about pretext if



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Case No. 19-3681, Smith v. Towne Properties Asset Management Co., Inc.


Towne honestly believed that she was misappropriating utilities even if that belief turned out to be

mistaken. Ferrari v. Ford Motor Co., 826 F.3d 885, 895 (6th Cir. 2016). So long as Towne made

a “reasonably informed and considered decision” based on “particularized facts,” then no

reasonable juror could infer that the reason given for firing Smith was pretextual. Babb v.

Maryville Anesthesiologists, P.C., 942 F.3d 308, 322 (6th Cir. 2019) (cleaned up).

       Towne did just that, as evidenced by multiple steps it took before firing Smith. First,

Towne investigated whether Smith was paying for her utilities. One of Smith’s supervisors helped

review the electric bills. He also contacted the water company to verify that Smith’s apartment

wasn’t generating a bill.

       Second, multiple Towne employees called Jack Brauer to verify whether utilities were part

of Smith’s compensation package. One of Towne’s management officers thought Jack might

know about the utilities (Smith worked for Jack before transferring to Towne). But when a Towne

employee called, Jack seemed “very surprised” and said he had no idea Smith wasn’t paying

utilities. Another one of Smith’s supervisors also called Jack “to find out if he had approved

payment of utilities” for Smith’s apartment. R. 14, Pg. ID 559. Jack said that he hadn’t.

       Third, Towne looked for evidence showing that Smith was entitled to free utilities.

Towne’s accounting department searched for any documentation about Smith’s utilities. But those

efforts uncovered no evidence about free utilities. (And for what it’s worth, Smith never claimed

that there’s any document memorializing her entitlement to free utilities. So it’s not as though

Towne did a shoddy investigation by overlooking a paper trail which might have disproved the

allegations.)

       What’s more, all the written evidence that Towne found suggested utilities weren’t part of

Smith’s compensation package. For example, Towne found a memo stating that Smith was



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Case No. 19-3681, Smith v. Towne Properties Asset Management Co., Inc.


entitled to free rent—yet that memo never mentioned utilities. And during her employment, Smith

requested a letter from Towne itemizing her compensation. That letter listed an apartment

allowance but omitted any reference to utilities.

       Fourth, Towne paid Fieldstone’s owners thousands of dollars for Smith’s unpaid utilities.

That suggests Towne honestly believed that Smith had been effectively stealing from Fieldstone.

After all, there would be no need for Towne to repay Fieldstone otherwise.

       And finally, Towne found no evidence that Smith’s use of the parking garage was

authorized. Smith says that her use of the garage was part of her compensation, so she didn’t need

to pay. For support, she points to a ledger entry showing that she was receiving a $50 parking

allowance. But there’s no evidence that Towne ever approved such an allowance.

       That pretty much takes care of the ADA claim because it shows Towne made an informed

decision based on specific facts. See, e.g., Ferrari, 826 F.3d at 897. But Smith makes one more

point worth mentioning. She points out (correctly) that the honest-belief rule doesn’t apply when

the employer, in reaching its decision to terminate the employee, makes errors that are “too obvious

to be unintentional.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 286 (6th Cir. 2012). That

caveat makes sense: if the employer makes blatant mistakes in its investigation, then a juror

reasonably could doubt whether the employer actually believes the reason or is just using it as

cover for discrimination.

       And here, Smith thinks that Towne made some errors that are too obvious to be

accidental—and that Towne is really just covering up disability discrimination. Smith first points

to the fact that Towne never asked her about the allegations. But an “optimal investigation—i.e.,

interviewing the employee and some or all of [her] witnesses—is not a prerequisite to application




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Case No. 19-3681, Smith v. Towne Properties Asset Management Co., Inc.


of the honest belief rule.” Id. at 286 (cleaned up). So not interviewing Smith doesn’t amount to

the sort of clear mistake that nixes the honest-belief rule.

       Smith next claims that Towne made an obvious mistake that casts doubt on their honest

belief because she was entitled to free utilities when she worked for the Brauers. Jack didn’t tell

Smith’s supervisors about that arrangement because he forgot about it, she says—Jack suffered

from Alzheimer’s. But that argument misses the point. The honest-belief rule kicks in even when

the reason for firing an employee turns out to be factually mistaken. Loyd v. St. Joseph Mercy

Oakland, 766 F.3d 580, 590–91 (6th Cir. 2014). When Towne decided to fire Smith—the only

relevant time for measuring pretext—it had ample factual basis for concluding that Smith was

effectively stealing from Towne’s client. See Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th

Cir. 2001) (explaining that the honest-belief rule depends on the facts known “at the time the

decision was made”).

       Nor does Cehrs v. Northeast Ohio Alzheimer’s Research Center do Smith any good. 155

F.3d 775 (6th Cir. 1998). There, the employer fired its employee because it thought she didn’t file

certain forms for taking medical leave. Id. at 778. The court suggested that a juror could infer

pretext in part because the employer didn’t reconsider its decision to fire the employee when she

reapplied for her position shortly after she was terminated. Id. at 784. That’s not what happened

here. There is no evidence that Smith ever asked for her job back—much less that she formally

reapplied for her position as the plaintiff did in Cehrs. Towne’s failure to reconsider its decision

thus doesn’t cast doubt about whether (at the time it fired her) Towne honestly believed Smith was

stealing utilities. See Cash v. Siegel-Robert, Inc., 548 F. App’x 330, 336 (6th Cir. 2013) (finding

Cehrs inapposite in part because the plaintiff “did not reapply for employment as Cehrs did”).




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Case No. 19-3681, Smith v. Towne Properties Asset Management Co., Inc.


       Because of the honest-belief rule, Smith cannot show pretext on her ADA claim. So the

district court did not err by granting Towne’s motion for summary judgment.

       FMLA Claim. Smith also argues that Towne retaliated against her for taking FMLA leave.

But both parties agree, and case law confirms, that the honest-belief rule applies with as much

force to Smith’s FMLA claim. See Seeger, 681 F.3d at 282–87. Smith thus cannot win on her

FMLA claim for the same reason she cannot win on her ADA claim—because she can’t show

pretext. See, e.g., Travers v. Cellco P’ship, 579 F. App’x 409, 417–18 (6th Cir. 2014).

       We affirm.




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