                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0770n.06

                                            No. 09-5185

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                   FILED
Jeremy Thayer,                                      )                          Dec 08, 2009
                                                    )                    LEONARD GREEN, Clerk
         Plaintiff-Appellant,                       )
                                                    )
v.                                                  )    ON APPEAL FROM THE UNITED
                                                    )    STATES DISTRICT COURT FOR THE
Tyson Foods, Inc.,                                  )    WESTERN DISTRICT OF TENNESSEE
                                                    )
         Defendant-Appellee.                        )
                                                    )
                                                    )



BEFORE:         MERRITT, GIBBONS, and McKEAGUE, Circuit Judges


         MERRITT, Circuit Judge. Plaintiff Jeremy Thayer claims that his former employer, Tyson

Foods, Inc. (“Tyson”), fired him in retaliation for filing a workers’ compensation claim. Tyson

claims it terminated Thayer for altering a doctor’s form stating that his illness was not work related.

Thayer appeals the District Court’s summary judgment dismissal of his retaliatory discharge claim.

The issue before us is whether any reasonable juror could find that Tyson fired Thayer in retaliation

for filing a workers’ compensation claim. Because Thayer has not pointed to facts sufficient to

overcome Tyson’s honest belief that Thayer falsified medical documents, we agree with the District

Court.

                                             I. FACTS

         We adopt the facts found by the District Court as set out below:
No. 09-5185
Thayer v. Tyson Foods, Inc.

       At the time the acts alleged in this lawsuit occurred, the Plaintiff was employed at Tyson's
       chicken processing plant in Union City, Tennessee. In October 2007, he was working as a
       pallet jack operator in the white meat debone department. On October 22, 2007, he went to
       the plant's clinic complaining of wheezing and shortness of breath.

       The Plaintiff was examined the next day by Grover F. Schleifer, M.D., one of Tyson's
       workers' compensation panel physicians. Following the examination, the nurse informed him
       that Dr. Schleifer believed the illness was not work related. Thayer was given two sets of
       documents by the nurse, one of which he was instructed to keep and the other to be
       forwarded to his employer. The physician's office retained another copy for its files. The
       copy of the form contained in Dr. Schleifer's files reflected that Thayer's illness was "not
       work related."

       Upon his return to work, the Plaintiff gave the white (original) and green copies of the form
       to the nurse at the Tyson clinic. Thayer then returned to work. According to the deposition
       testimony of Tyson's nurse supervisor, Gayle Blackley, it appeared that the original form had
       been altered. Vickie Culp, a nurse at Tyson's clinic in Union City, stated under oath that the
       word "not" in the phrase "not work related" appeared to have been scribbled or smudged out
       on the original. Although disputed by the Plaintiff, Culp recalled that, when questioned
       about the marking, Thayer told her Dr. Schleifer had initially thought the illness was not
       work related and then changed him [sic] mind. According to Culp, the explanation struck
       her as odd, as it was her understanding the clinic had already received a telephone call from
       the physician's office advising that the illness was not work related. A few hours after the
       Plaintiff's return to the facility, the Defendant's human resources department called Thayer
       in for a meeting, during which employment manager Frankye Williams informed him of the
       apparent inconsistency between the green and white copies of the form he had provided.
       Thayer was suspended for three days while Tyson conducted an investigation into the matter.
       Tyson policy provides that deliberate alteration or falsification of company documents or
       other misrepresentations can result in termination. A "discipline letter" issued by the
       Defendant stated that "[o]n Tuesday October 23, 2007 Jeremy turned in paper work [sic]
       from the work [sic] compensation doctor to the clinic that allegedly appears to be altered. All
       team members are expected to turn in medical documentation that reflects true and accurate
       information."

       Neither Williams nor Connie Betz, assistant complex human resources manager at the Union
       City plant, was in charge of administering workers' compensation claims for the Defendant's
       employees. During the ensuing investigation, Williams interviewed Thayer concerning the
       forms provided by him to the company's clinic. Williams contacted Dr. Schleifer's office in
       order to determine whether one of his employees had altered the form. An individual
       identified as "Nurse Sharon" in Dr. Schleifer's office pulled the physician's copy of the form
       contained in his files and advised Williams that it did not bear a scribble mark. At Williams'

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No. 09-5185
Thayer v. Tyson Foods, Inc.

       request, Nurse Sharon faxed to Tyson the form copy from Dr. Schleifer's files as well as her
       statement regarding the form. The statement read as follows:

               Mr. Thayer presented to the office on Tuesday, October 23rd for evaluation of his
               breathing difficulties. We were specifically asked to address causation.

               The referral and treatment form that was sent with Mr. Thayer was completed at the
               time of the evaluation. After his examination, the patient was escorted by office staff
               from the treatment area to the front office – the referral form was still attached to the
               chart and the chart was in the possession of our office staff. Copies were made from
               the top sheet of the 4-ply form -- one "good" copy for the patient (as the patient copy
               is the last page of a 4-ply form and is rarely legible) and another for insurance filing
               purposes. The white and green copies were folded up and the patient was instructed
               to turn those in to the nurse's station; the pink patient copy and a Xerox copy were
               given to the patient for his records. The yellow copy along with the second Xerox
               was filed in the patient chart.

               The patient did not have access to the form before the copies were made, and he did
               not return to the treatment area after the copies were made to have changes made by
               the physician or nursing staff. No changes had been made to the form by front-office
               staff. A copy of the form as it exists in our record is being sent for your reference.

       On October 24, 2007, Williams asked the Plaintiff to bring in the pink copy of the form that
       the doctor's office had given him for his records. Thayer volunteered that he also had in his
       possession an additional white copy. He provided both to Williams. It is undisputed that
       neither reflected any marking over the word "not." Tyson terminated Thayer on October 29,
       2007, stating that the grounds for the discharge was falsification of medical documentation.

R. 27, Order Granting Summary Judgment, pp. 2-4 (internal citations omitted).

                                 II. STANDARD OF REVIEW

       We will affirm a grant of summary judgment “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(c). We view the

evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574 (1986). The key inquiry is “whether the evidence presents a

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No. 09-5185
Thayer v. Tyson Foods, Inc.

sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

                                        III. DISCUSSION

       Tennessee law applies to the substantive issues in this diversity suit. 28 U.S.C. § 1332(a);

See Surles ex rel Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 296 n.1 (6th Cir. 2007) (citing

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Under Tennessee common law, Thayer bears the

burden of proving the following elements to establish a cause of action for retaliatory discharge

based on the filing of a workers’ compensation claim: (1) Thayer was employed by Tyson at the time

of the alleged injury; (2) Thayer filed a claim for workers’ compensation benefits against Tyson; (3)

Tyson terminated Thayer; and (4) Thayer’s claim for workers’ compensation benefits was a

substantial factor in Tyson’s motivation to terminate Thayer’s employment. Anderson v. Standard

Register Co., 857 S.W.2d 555, 558 (Tenn. 1993).

       If Thayer succeeds in showing each of these four elements, he has made out a prima facie

case of retaliatory discharge. The burden then shifts to Tyson to articulate a legitimate, non-

retaliatory reason for the discharge. Id. at 559. If Tyson makes such a showing the burden shifts

back to Thayer to produce “additional, compelling evidence of pretext” by showing “specific,

admissible facts, which realistically challenge the defendant’s stated reasons” for its actions. Ellis

v. Buzzi Unicem USA, 293 F. App’x 365, 368 (6th Cir. 2008); Wilkins v. Eaton Corp., 790 F.2d 515,

521 (6th Cir. 1986).

       Tyson argues that Thayer has failed to satisfy the fourth element – that his workers’

compensation claim was a substantial factor in Tyson’s motivation to fire him – because he cannot

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No. 09-5185
Thayer v. Tyson Foods, Inc.

show causation. “Proof of discharge without evidence of a causal relationship between the claim

for benefits and the discharge does not present an issue for the jury.” Anderson, 857 S.W.2d at 558-

59. To show causation, Thayer relies on the short time between the submission of his workers’

compensation claim (October 23, 2007) and his termination (October 29, 2007). For purposes of this

case, we assume without deciding that, under Tennessee law, close timing alone can establish

causation in a case of retaliatory discharge based on the filing of a workers’ compensation claim.1

       Assuming Thayer has made out a prima facie claim, Tyson offers its belief that Thayer had

falsified medical documents as a legitimate, non-retaliatory reason for its actions. The burden shifts

to Thayer to demonstrate that this stated reason was a pretext for retaliation. Ellis, 293 F.App’x at

368. Thayer “must either provide direct evidence that a discriminatory reason more likely motivated

the employer, or show indirectly that the employer’s explanation is not credible.” Burke v. Wes

Morgan Constr., Inc., No. 3:02-CV-1187, 2005 WL 2709638, at *8 (M.D. Tenn. Oct. 21, 2005).

Thayer may also establish pretext by “showing that the [employer’s] reasons have no basis in fact,

or if they have a basis in fact, by showing that they were not really factors motivating the discharge,

or, if they were factors, by showing that they were jointly insufficient to motivate the discharge.”




       1
         The Tennessee Supreme Court is in the process of reviewing Kinsler v. Berkline, LLC, No.
E2007-026202-COA-R3-CV, 2008 WL 4735310 at *5 (Tenn. Ct. App. Oct. 27, 2008), appeal
granted (Apr. 27, 2009) (“[P]roof of close proximity in time between an employee’s exercise of a
protected right under the workers’ compensation statutes and a materially adverse employment action
is sufficient to establish a prima facie case of causation.”). Because the District Court decided this
issue in Thayer’s favor and because we find that Thayer’s claim fails regardless, we need not wait
for this decision.

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Thayer v. Tyson Foods, Inc.

Davis v. Reliance Elec., 104 S.W.3d 57, 63 (Tenn. Ct. App. 2002), app. denied (May 5, 2003)

(citation omitted).

       Thayer offers as evidence of pretext that Tyson failed to follow its internal policies regarding

investigation and termination because (1) Tyson did not complete an Investigation Checklist form;

(2) two or more management team members were not present when Thayer was discharged; and (3)

the location of the discharge was not pre-approved by the Director of Human Resources Operations.

Tyson does not dispute that these policies were not followed regarding Thayer’s termination. The

District Court convincingly reasoned that there was no logical connection between any of these

relatively inconsequential procedural variances and the cause of Thayer’s discharge.

       Thayer next offers as evidence of pretext that Tyson had no factual basis for concluding that

he falsified the documents and that a reasonable trier of fact could find that Tyson failed to conduct

a good faith investigation. Despite Thayer’s arguments to the contrary, the District Court correctly

applied an “honest belief” standard to Tyson’s stated reason for terminating Thayer. “An employer

has an honest belief in its rationale when it reasonably relied on the particularized facts that were

before it at the time the decision was made. [Courts] do not require that the decisional process used

by the employer be optimal or that it left no stone unturned.” Michael v. Caterpillar Fin. Servs.

Corp., 496 F.3d 584, 598-99 (6th Cir. 2007), cert. denied __ U.S. __, 128 S. Ct. 1657 (Mar. 17,

2008) (internal citations and quotation marks omitted).

       The District Court found that Tyson’s belief that Thayer had falsified medical records was

reasonably based on particularized, undisputed facts: (1) Thayer carried the medical documentation

from the doctor’s office to Tyson’s clinic; (2) the form had a smudge or strike on it that was

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No. 09-5185
Thayer v. Tyson Foods, Inc.

questioned by the nurse; (3) Thayer offered no explanation as to why the forms were inconsistent;

(4) there was no evidence another individual altered the document; and (5) between 2003 and 2007,

Tyson terminated forty employees for falsification of medical documentation, only five of whom had

workers’ compensation claims. Accordingly, the District Court found that Tyson had an honest

belief that Thayer falsified medical records and therefore did not act with retaliatory intent. See Clay

v. United Parcel Serv., Inc., 501 F.3d 695, 715 (6th Cir. 2007). Because Thayer could not show that

Tyson’s stated reason for termination was mere pretext for retaliation, the District Court correctly

granted Tyson’s motion for summary judgment.

       Thayer argues for the first time on appeal that Tyson altered Thayer’s note in order to frame

Thayer by falsifying the document. Thayer claims unconvincingly that the argument was raised

below. Thayer now argues that by asserting that he did not alter the note, he implied that Tyson must

have done it because nobody else had access.

       Even if we entertain implied arguments as raised below, Thayer offers no new evidence to

support the assertion that an employee at Tyson framed Thayer. “In order to survive a motion for

summary judgment, the non-moving party must be able to show sufficient probative evidence that

would permit a finding in his favor on more than mere speculation, conjecture, or fantasy.” Lewis

v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir.), cert denied, 543 U.S. 821 (2004).

       Thayer also cannot offer any convincing theory as to why Tyson would fire him in retaliation

for making a workers’ compensation claim for an illness that was not work related. Unlike nearly

all analogous cases, Tyson had no financial motive to fire Thayer. See, e.g., Kinsler, supra (plaintiff

backed out of workers’ compensation settlement); Federated Rural Elec. Ins. Exchange v. Hill, No.

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Thayer v. Tyson Foods, Inc.

M2005-02461-COA-R3-CV, 2007 WL 907717 (Tenn. Ct. App. Mar. 26, 2007) (employer paid over

$100,000 in medical benefits for plaintiff’s knee injuries); Jaime v. Am. Water Heater Co., No.

E2005-00907-COA-R3-CV, 2006 Tenn. App. LEXIS 46 (Tenn. Ct. App. Jan. 24, 2006) (plaintiff

had preexisting medical condition); Morris v. State, No. M1999-02714-COA-RM-CV, 2002 WL

31247079 (Tenn. Ct. App. Oct. 8, 2002) (dispute over how much workers’ compensation plaintiff

was entitled for illness).

        Thayer offers that, “By terminating [Thayer], Tyson warded off any future claims by Thayer

who had shown that he would make such a claim.” Appellant’s Rep. Br. at 10. There is nothing in

the record to indicate that Thayer would make any future claims or had any other medical problems.

Moreover, Thayer was, by all accounts, a good worker. There is also no evidence that Tyson has

fired any other worker for demonstrating a willingness to file a workers’ compensation claim. We

find that there is no evidence from which a reasonable factfinder could infer that Tyson was

motivated to fire Thayer for any reason other than the one stated: falsifying documents.

        Because Thayer has not pled sufficient facts to overcome Tyson’s honest belief that he

falsified medical documents, we hereby AFFIRM the District Court’s order granting summary

judgment for Tyson.




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