               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0479n.06

                                       Case No. 15-2318                              FILED
                                                                               Aug 16, 2016
                         UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


KIMBERLY HARTMAN,                                  )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
DOW CHEMICAL COMPANY,                              )      MICHIGAN
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )


BEFORE: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.

       SILER, Circuit Judge. Discharged employee Kimberly Hartman brought an action

against her former employer, Dow Chemical Company, alleging that the company violated the

Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., by terminating her after she

returned from leave. A jury found Dow liable and awarded Hartman damages. Dow appeals the

district court’s denial of its motion for judgment as a matter of law. For the reasons explained

below, we REVERSE the district court and REMAND for an entry of judgment in favor of

Dow.

                                              I.

        Hartman began working for Dow in 2010. Her supervisor was John “Jack” Ingold, but

Hartman primarily performed administrative support for attorney Toby Threet and paralegal
Case No. 15-2318, Hartman v. Dow Chemical Co.


Stacy McKeon. The majority of Hartman’s work required her to be online and connected to

Dow’s network—either while at Dow or using its virtual private network (“VPN”) while not in

the office.

        In April 2013, Hartman contacted her team at work—which included Ingold, Threet, and

McKeon—to inform them that she would need time off for surgery. Hartman’s leave began on

May 28, 2013, and she underwent surgery on May 30. In June, Hartman told her team that she

had an upcoming doctor’s appointment on July 15, and that she hoped it would result in her

being cleared to work. However, after that appointment, Hartman informed her team that she

needed to extend her leave by four weeks. She returned to work part time on July 29, and

resumed a full-time schedule on August 20. Her entire absence was approved under the FMLA.

        Ingold received a voicemail message from Threet on July 15 informing him that Hartman

was seen by a coworker displaying a good range of motion and that “she was feeling pretty

good,” which called into question her need for additional recovery time. Threet was concerned

that Hartman was committing timecard fraud and suggested holding an employee review meeting

(“ERM”) at that time. Threet said that Ingold later told him that “the decision had been made”

not to hold an ERM while Hartman was on leave. However, Ingold testified that Threet’s

statement was inaccurate and that there had never been any possibility of an ERM. Ingold asked

Hartman for additional confirmation from her doctor, which was received and found satisfactory.

Hartman testified that Ingold acted “standoffish” and “curt” when Hartman delivered the

doctor’s note, which she thought was unusual.

        Around the time that Hartman initially requested medical leave, McKeon became

concerned about Hartman’s hours. Hartman worked an “alternate Friday off” (“AFO”) schedule

that allowed her to have every other Friday off if she had completed the necessary hours.



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Case No. 15-2318, Hartman v. Dow Chemical Co.


McKeon suspected that Hartman was leaving earlier than normal.1 As a result, she began taking

notes on Hartman’s arrivals and departures. McKeon provided Ingold with this information

around the May 2013 “time frame.” Additionally, Dana Chauvette, the intern assigned to

Hartman’s position while she was on leave, noticed that most of the work Hartman left for her to

do was either late or done incorrectly. When Threet was presented with this information, he

became aware of several problems with Hartman’s work performance.2

        Upon Hartman’s return to work, her coworkers continued monitoring her arrivals and

departures. Hartman also testified that the atmosphere at work had changed after her medical

leave. In September, Threet sent an update on Hartman’s work schedule to Ingold since it still

did not seem that she was working the hours she needed. This email ended with, “Do we have

enough now to take action? Please?”                Ingold forwarded the email to a human-resources

representative, but without the plea. After this, Hartman’s coworkers continued to record what

Hartman did when she was not working, such as when she used her personal phone or the

computer for personal matters.

        Ingold was concerned at this point, so he began gathering objective evidence of

Hartman’s time at work by getting her gate records. There was a sixty-hour discrepancy between

Hartman’s timecards and her gate records. When asked to explain this difference, Hartman said

that she worked at home every night for two to two-and-a-half hours. Hartman further explained

that her VPN records might not reflect this because she did not always connect to the VPN when
        1
          Hartman was supposed to work a total of eighty hours over a nine-day period, which allowed her to take
every other Friday off since she would have already worked all her required hours. McKeon explained that while
Hartman normally left around four o’clock, McKeon noticed that she had been leaving around two or three o’clock
instead.
        2
           Not long after Hartman went on leave, Chauvette went to Threet for help in completing a task that
Hartman had left for Chauvette. Threet discovered that this task was one that had been assigned to Hartman “long
ago” and involved matters that were months or even a year late. Additionally, Threet discovered that Hartman had
been incorrectly completing invoices. Threet also found out that Hartman was not being assigned much work by
McKeon due to McKeon’s fears that it would not be done correctly. This is when they started paying attention to all
of the “non-work activities” that Hartman engaged in, such as texting or spending time on Facebook.

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Case No. 15-2318, Hartman v. Dow Chemical Co.


working at home. Ingold was suspicious that Hartman could work without connecting to the

VPN and thus did not believe her explanation. Hartman was then placed on administrative leave.

            Upon analyzing Hartman’s VPN records from mid-August through late September,

Ingold found that she had only connected to the VPN on two occasions. On one of these

occasions, Hartman accessed the VPN because she was working from home while sick, not

because she was getting additional hours after work. After this discovery, Ingold scheduled an

ERM.            Participants in the ERM3 considered only the objective evidence:                   Hartman’s gate

records, VPN records, timecard records, and her explanation. They concluded that they should

terminate Hartman’s employment because of timecard fraud. In a separate meeting, Ingold

communicated to Hartman the ERM’s decision to terminate her for timecard fraud. When

Hartman commented that the timing was suspicious due to her medical leave, Ingold stated that it

had nothing to do with her leave.

            Hartman subsequently commenced this action, alleging that her termination constituted

both interference and retaliation in violation of the FMLA. She also claimed that Dow violated

the Michigan Persons with Disabilities Civil Rights Act. The district court granted summary

judgment to Dow on Hartman’s interference and disability-discrimination claims but denied it on

the retaliation claim.

            At the conclusion of the jury trial, Dow made a motion for judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50, which the court took under advisement. The jury

then found for Hartman and awarded her $50,310.00 in lost wages and $122,297.00 for future

damages. Upon denying Dow’s renewed motion for judgment as a matter of law, the court

concluded that Hartman presented sufficient evidence that Dow terminated her for her use of


            3
                The participants at the ERM were Ingold, two human resource representatives, a neutral manager, and an
attorney.

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Case No. 15-2318, Hartman v. Dow Chemical Co.


FMLA leave. The court pointed specifically to the close temporal proximity between Hartman’s

leave, her coworkers’ monitoring, and her termination—in addition to the testimony and actions

of Threet—as support for her FMLA claim.

                                                II.

       “We review de novo the decision of a district court on a motion for judgment as a matter

of law, applying the same standard used by the district court.” Waldo v. Consumers Energy Co.,

726 F.3d 802, 818 (6th Cir. 2013). “The evidence should not be weighed, and the credibility of

the witnesses should not be questioned.” Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797,

804 (6th Cir. 2015) (quoting Balsley v. LFP, Inc., 691 F.3d 747, 757 (6th Cir. 2012)).


                                                III.

       A plaintiff may recover against her employer for a violation of the FMLA under two

distinct theories of liability: the “interference” or “entitlement” theory and the “retaliation” or

“discrimination” theory. Arban v. West Publ’g Corp., 345 F.3d 390, 400-01 (6th Cir. 2003).

The “retaliation” theory imposes liability on an employer that “discharge[s] or in any other

manner discriminate[s] against any individual for opposing any practice made unlawful by this

[Act].” 29 U.S.C. § 2615(a)(2).

       To establish a prima facie claim for retaliation, a plaintiff must demonstrate that:

       (1) [s]he engaged in an activity protected by the Act; (2) that this exercise of h[er]
       protected rights was known to the defendant; (3) that defendant thereafter took an
       employment action adverse to the plaintiff; and (4) that there was a causal
       connection between the protected activity and the adverse employment action.

Arban, 345 F.3d at 404. If a plaintiff establishes a prima facie case, the burden shifts back to the

employer to articulate a non-discriminatory basis for terminating the employee.           See, e.g.,

Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). Finally, once the employer provides its


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Case No. 15-2318, Hartman v. Dow Chemical Co.


non-discriminatory reason, the employee may rebut the employer’s basis by showing that it was

pretext for retaliation. See Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419,

431-32 (6th Cir. 2014). “A plaintiff may establish pretext by showing that the employer’s

proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were

insufficient to warrant the action.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285

(6th Cir. 2012) (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).

                                                 IV.

       This appeal centers on what constitutes evidence of pretext. Hartman proceeded to trial

on two theories of pretext: that Dow’s reason for terminating her for timecard fraud had no basis

in fact and that it did not actually motivate Dow. The district court rejected Hartman’s reliance

on the first theory but found sufficient evidence to deny Dow’s Rule 50 motion based on her

second theory.     On appeal, Dow contends that while the district court correctly rejected

Hartman’s first theory, it erred in its analysis of the second theory.

                                                   A.

       Dow maintains that Hartman cannot demonstrate that its decision to terminate her had no

basis in fact because Dow honestly believed that she committed timecard fraud. The district

court agreed with Dow in both its summary judgment opinion and order denying Dow’s Rule 50

motion. On appeal, Hartman largely fails to contest this issue.

       A plaintiff can attack the credibility of the employer’s non-discriminatory reason for

termination by proving that the employer’s reason lacks a factual basis. Seeger, 681 F.3d at 285.

However, the employer can defeat that attack by explaining that it had an honest belief in the

reason it gave for the termination. Id. “This court has adopted an ‘honest belief’ rule with

regard to an employer’s proffered reason for discharging an employee.” Majewski v. Automatic



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Case No. 15-2318, Hartman v. Dow Chemical Co.


Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citing Smith v. Chrysler Corp.,

155 F.3d 799, 806-07 (6th Cir. 1998)).

       The evidence that can be used to support the employer’s honest belief and the resulting

decision varies, but it often involves some kind of investigation.       See, e.g., id.; Chrysler,

155 F.3d at 808. Courts have accepted employment decisions based on other types of evidence,

such as records, eyewitness accounts, and information provided by the employee, but they have

rejected decisions based entirely on unsupported personal opinions. Compare Seeger, 681 F.3d

at 287 (finding that a decision based on medical records and various testimony—including from

the plaintiff himself—was satisfactory), with Chrysler, 155 F.3d at 808 (rejecting a belief that

was primarily based on a personal opinion).

       Here, Dow points to specific evidence that supports its belief that Hartman was

committing timecard fraud. The decisionmakers at the ERM looked to the objective evidence

they had collected, and that evidence—the timecard records, gate records, VPN records, and

Hartman’s explanation—led to their unanimous decision to terminate Hartman for timecard

fraud. Therefore, Dow is able to cite specific evidence that supports its belief that Hartman was

committing timecard fraud.

       Hartman questions a specific result from the investigation—the accuracy of the

calculations that led Dow to conclude there was a sixty-hour discrepancy between her timecard

entries and the gate records. Hartman claims that this number is the result of “over-count[ing]”

by rounding numbers and counting vacation days against her. While Hartman is permitted to

discredit Dow’s alleged honest belief, she must do more than just disagree with a fact that led to

her termination. See Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001); Chrysler,

155 F.3d at 807-08. Instead, she must focus on the investigatory process and the resulting



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Case No. 15-2318, Hartman v. Dow Chemical Co.


decision. See Seeger, 681 F.3d at 285-86. This requires a specific showing that the employer’s

decision-making process was not “reasonably informed and considered” and is thus not worthy

of belief. Chrysler, 155 F.3d at 807-08.

        While Hartman may challenge some of the methods that Dow used to discover the

discrepancy between the timecards and the gate records, Dow did not have to use every available

method in order to more accurately determine the extent of Hartman’s supposed timecard fraud.

See Chrysler, 155 F.3d at 807 (explaining that a “reasonably informed and considered decision”

does not require that the employer “le[ave] no stone unturned”).       Rather, as the evidence

demonstrates, Dow made a reasonable decision that was based on the available facts. See

Seeger, 681 F.3d at 285. Therefore, the extent of Dow’s investigation, while perhaps imperfect,

was satisfactory.

        Additionally, the fact that Dow’s reported discrepancy is potentially an overstatement

does not automatically transform its honest belief into pretext for the purposes of a retaliation

claim. The honest belief rule will continue to shield an employer even if it is later discovered

that its belief was incorrect. Majewski, 274 F.3d at 1117; see also Seeger, 681 F.3d at 287

(explaining that the employer’s honest belief would still be valid even if the court reached a

different conclusion based on the investigation). As this court has previously explained, it does

not matter whether the employee actually committed fraud—what matters is if the employer

honestly believed that the employee did. Seeger, 681 F.3d at 286. Here, Dow honestly believed

that Hartman committed timecard fraud based on the facts presented at the time. This honest

belief shields Dow from Hartman’s claim that the proffered reason was factually baseless.

Accordingly, Hartman has failed to prove that Dow’s stated reason for terminating her had no

basis in fact.



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Case No. 15-2318, Hartman v. Dow Chemical Co.


                                                  B.

          The primary dispute in this case is whether the district court properly denied Dow’s Rule

50 motion on the basis that Hartman presented sufficient evidence to show that her use of FMLA

leave actually motivated Dow’s decision to terminate her. When pursuing the second method of

demonstrating pretext, the plaintiff “attacks the employer’s explanation ‘by showing

circumstances which tend to prove an illegal motivation was more likely than that offered by the

defendant.’” Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000) (quoting Manzer v.

Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). “In other words, the

plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it

‘more likely than not’ that the employer’s explanation is a pretext, or coverup.” Id. (citing

Manzer, 29 F.3d at 1084).

          Dow advances two arguments to support its claim that the district court erred. First, Dow

contends that the district court’s two bases for finding evidence of pretext—temporal proximity

and Threet’s email and testimony—“are inadequate as a matter of law to prove that timecard

fraud did not actually motivate Dow’s decision to terminate Hartman.” Second, Dow asserts that

the district court erred by permitting Hartman to argue two incompatible theories of pretext to

the jury.

                                                  1.

          The district court’s analysis of temporal proximity primarily centered on a series of three

events:     (1) when Hartman used FMLA leave; (2) when Hartman’s co-workers started

monitoring her time; and (3) when Dow decided to terminate her. With respect to the time

between the first and second events, the district court noted that McKeon started monitoring

Hartman’s absences shortly after Hartman sent an email to her co-workers regarding her intent to


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Case No. 15-2318, Hartman v. Dow Chemical Co.


use FMLA leave. Additionally, the district court found relevant that not only did McKeon

continue to keep track of Hartman’s time after she returned from leave, but the evidence also

suggested that Ingold had requested McKeon keep track of that information at a later point.

According to the district court, “[t]his monitoring, in turn, precipitated the investigation into

Plaintiff’s gate record and VPN log-in times.”

       Dow contests both the factual and legal conclusions of the district court, particularly the

significance placed on McKeon’s decision to monitor Hartman.            Dow notes that it was

McKeon’s initiative, not Ingold’s, that resulted in the monitoring of Hartman’s time. Moreover,

Dow argues that, even if Hartman’s use of FMLA leave triggered its review of Hartman’s

timecard information, such an action “cannot logically be evidence that the FMLA leave caused

the termination.” Simply put, Dow takes the position that it does not matter who initiated the

investigation into Hartman, or why they did, because employers are permitted to determine

employee violations regardless of the use of FMLA leave.

       Dow is correct to suggest that temporal proximity between the start of an investigation

into an employee’s misconduct and the use of FMLA generally does not itself provide sufficient

evidence of animus. See Hall v. Ohio Bell Tel. Co., 529 F. App’x 434, 440-41 (6th Cir. 2013).

Here, however, the district court, relying on Lamer v. Metaldyne Co. LLC, 240 F. App’x 22 (6th

Cir. 2007), makes a slightly different point—that the greater scrutiny Hartman received from

co-workers after she gave notice of her leave provided evidence of retaliatory animus. And

based on Hartman’s post-FMLA treatment, the district court found that “the jury could infer

from the evidence Plaintiff produced that the investigation was motivated by her colleagues’

frustration with her FMLA leave and not her alleged misreporting of work time after her return.”




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Case No. 15-2318, Hartman v. Dow Chemical Co.


       In Lamer, during the plaintiff’s tenure with his employer, he had “exhibited a pattern of

tardiness and absenteeism.” 240 F. App’x at 24. For employee infractions, the employer utilized

a four-step discipline procedure. Id. at 25-26. Before the plaintiff engaged in a protected

activity, he had received a verbal warning for tardiness, which was the first step in the

progressive discipline procedure. Id. However, after the plaintiff engaged in the protected

activity, he received a series of reprimands for excessive tardiness that moved him from the

second step to the fourth step in a short period. Id. at 27. His employer ultimately terminated

him. Id.

       The district court granted summary judgment in favor of the employer, but we reversed,

finding that the plaintiff had put forth sufficient evidence to dispute whether his use of FMLA

leave actually motivated the adverse employment action. Id. at 33. Key to our decision was the

fact that “the progressive-discipline policy asserted as a rationale for an employee’s termination

was not uniformly applied.” Id. (citation omitted). Particularly, we noted that the employer did

not terminate the plaintiff’s employment “for any of the many policy violations that he

committed before engaging in protected conduct.” Id. at 32 (emphasis added). And because of

this, we concluded that retaliatory animus could be inferred. Id.; see also Cantrell v. Nissan N.

Am. Inc., 145 F. App’x 99, 105-06 (6th Cir. 2005) (“[W]here an employer treats an employee

differently after she asserts her rights . . . than before she had done so, a retaliatory motive may

be inferred.” (citing Walborn v. Erie Cty. Care Facility, 150 F.3d 584, 589 (6th Cir. 1998))).

       As Dow correctly argues, the facts of this case are distinguishable from those of Lamer.

Here, unlike Lamer, all the evidence indicates that Hartman’s co-workers, not Ingold, decided to

start monitoring Hartman’s time. Moreover, even if Ingold had started to investigate timecard

issues with Hartman after she gave notice of FMLA leave, there is no indication that Ingold was



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aware of any problems before she took leave. For Lamer to be relevant, Ingold would have

needed to know about Hartman’s alleged timecard fraud, initially ignored it, and then taken

action after Hartman used her leave. But the record does not support any such finding here.

       Finally, Dow argues that retaliatory animus may not be inferred from the fact that it

terminated Hartman shortly after she returned from FMLA leave. In other words, Dow believes

temporal proximity alone is not enough to establish an inference of animus. Although our

precedent permits a plaintiff to establish a prima facie showing of a causal connection based

solely on temporal proximity, see Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524-25 (6th

Cir. 2008), “the law in this circuit is clear that temporal proximity cannot be the sole basis for

finding pretext,” Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012) (citing Skrjanc v.

Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001)). But “suspicious timing is a

strong indicator of pretext when accompanied by some other, independent evidence.” Seeger,

681 F.3d at 285 (emphasis added) (quoting Bell v. Prefix, Inc., 321 F. App’x 423, 431 (6th Cir.

2009)). Therefore, we must determine whether other “independent evidence” exists.

                                              2.

       Dow advances two challenges to the district court’s finding that Threet’s email to Ingold

evidenced discriminatory animus toward Hartman’s use of FMLA leave. First, Dow asserts that,

contrary to the district court’s assessment, Threet’s email lacked any language to suggest

retaliatory animus. Second, Dow argues that any language in the email suggesting retaliatory

animus cannot be imputed to the company because Threet was not a decisionmaker.

        In assessing the impact of Threet’s email on Dow’s decision to terminate Hartman, the

district court applied the four-factor analysis articulated by Peters v. Lincoln Elec. Co., 285 F.3d

456, 477-78 (6th Cir. 2002). Peters applies when assessing whether a comment in the workplace


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reflects a bias on the part of the employer toward a protected class or protected activity.

285 F.3d at 477. Although Dow claims that the district court incorrectly analyzed the Peters

factors, it seeks to undermine a more fundamental point—that Threet’s email contained a

discriminatory remark. According to Dow, the district court lacked any basis to conclude that

Threet’s email evidenced retaliatory animus; rather, the email, Dow believes, indicates that

Threet’s “motivations were (1) offense that Hartman was defrauding Dow, and (2) a desire to

retain Chauvette.” The entirety of Threet’s email is as follows:

       Jack, I have an update for you. Kim is taking her AFO (alternate Friday off)
       today. My understanding is that, in order to get an AFO, one must work an extra
       hour (approximately) on the other workdays of the two-week period. So far as I
       can determine, Kim has not been doing that. She has been arriving after 8 AM
       (usually in the range of 8:05 to 8:15), and usually leaves by 4 PM. Per Stacy,
       Kim has been taking at least an hour for lunch each day, which means the 4 PM
       departures (or earlier) do not constitute the use of her lunch hour. So instead of
       working approximately 9 hours per day to qualify for the AFO, she has mostly
       been working slightly less than 7 hours per day. And she still took the AFO. At
       first glance, this would appear to be time card fraud. It would be the second
       identified instance. (The first would relate to Connie Bailey’s account, when Kim
       was off work.) Kim is no longer on medical restrictions, so that is no longer an
       issue.

       It also appears that Stacy, Dana[,] and I have all noted that when Kim is in the
       office, she spends an unusual amount of time doing things other than work. I
       have seen Kim texting a lot. Stacy says Dana has encountered Kim doing
       Facebook on several occasions. Granted, everyone does some amount of personal
       stuff, and that’s OK. But we really don’t see a lot of work output from Kim.

       Meanwhile, Dana is doing most of Kim’s work. Dana is largely past the learning
       curve, and is out-performing Kim. And Dana is looking for other jobs so that she
       can get benefits.

       Do we have enough now to take action? Please?

       On its face, Threet’s plea at the end of his email cannot constitute direct evidence of

FMLA animus.       To illustrate, in Curry v. Brown, we examined whether the supervisor’s
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statements that the plaintiff “needed to focus on her health problems, transfer . . . and it would be

less stressful,” and that “she should probably focus on her health rather than worry about the

stress of supervising people” constituted evidence of retaliatory animus. 607 F. App’x 519, 523

(6th Cir. 2015) (internal quotation marks omitted). We found those statements lacking in

discriminatory animus because the supervisor made no mention of the plaintiff’s use of FMLA

leave. Id. at 524. Likewise, here, there is no mention of FMLA leave in Threet’s email when he

asked, “Do we have enough now to take action? Please?” Furthermore, this circuit’s case law

requires that the alleged discriminatory statement be more than just ambiguous to create an

inference of animus. Compare Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993)

(“[I]solated and ambiguous comments ‘are too abstract, in addition to being irrelevant and

prejudicial, to support a finding of . . . discrimination.’” (quoting Gagné v. Nw. Nat’l. Ins. Co.,

881 F.2d 309, 314 (6th Cir. 1989))), with Seoane-Vazquez v. Ohio State Univ., 577 F. App’x 418,

423, 431 (6th Cir. 2014) (finding a remark “indisputably retaliatory” where the discussion

involved the plaintiff’s filing of internal complaints and an EEOC claim). Threet’s comments,

however, fail to even indirectly suggest retaliatory animus. Accordingly, because Threet’s email

does not contain a discriminatory remark, the four-factor test under Peters need not be reached.

                                              3.

       The last relevant evidence that the district court relied on in denying Dow’s Rule 50

motion was the testimony of Threet and Ingold about the possibility of holding an ERM during

Hartman’s FMLA leave. Specifically, Threet testified that while Hartman was on leave, he

recommended that Ingold hold an ERM concerning Hartman, but Ingold told him that “the

decision had been made that if an employee review meeting had been held for alleged timecard

fraud while she was on leave, she might later file a lawsuit claiming that the action was because



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she was on leave.” However, when asked about that conversation, Ingold denied that it ever

occurred, elaborating further that “[i]f there was going to be any sort of ERM or any other

employee action, that’s my job, not Toby’s, and I certainly never heard or thought anything

about that.”   Based on this testimony, the district court found that “the jury could have

reasonably determined that Mr. Threet was credible” and that the testimony created “additional

circumstantial evidence that Defendant’s proffered reason for terminating Plaintiff was pretext.”

       Similar to Dow’s objection to Threet’s email, it contends that “even if the jury believed

that Dow decided not to hold an ERM, it is not evidence of any desire to punish Hartman for

taking FMLA leave.” Instead, Dow maintains that Ingold’s statement concerning not wanting to

hold an ERM during Hartman’s leave—if one presumes that Threet’s recollection is correct—

indicates that “Dow wanted to avoid even the appearance of taking any adverse action against

Hartman while she was on leave.” Further, Dow notes that it is not unlawful for an employer to

consider whether an employee should be investigated for a violation of company policy, even if

that employee is engaged in a protected activity.

       Dow presents a compelling argument. To permit an inference of retaliatory animus based

on a company’s honest assessment of the potential risk of terminating an employee would unduly

hinder frank employment decisions. Moreover, there must be a clear line for the purpose of

liability between an employer considering whether an employee may file suit—even though the

employer has a legitimate basis to take an adverse employment action—and an employer

terminating a plaintiff based on the employee’s protected status or engagement in a protected

activity: the latter results in liability for the employer while the former does not. For that reason,

it is legally insufficient for a jury to reasonably rely on Ingold’s alleged statement that Dow was

concerned that if an ERM was held concerning Hartman, she might file suit.



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                                             4.

       Hartman contends that Ingold’s “negative comments towards [her] and the suggestion

that [she] was feigning her need for leave [is] further evidence of retaliation.” Specifically, she

notes that Ingold “had made fun of [her] need for medical leave to Ms. Bailey and the status of

[her] recovery.”

       In an email from Connie Bailey to McKeon, Bailey wrote that Ingold had informed her

that “after [Hartman] left . . . that he went to shake her hand[,] and she pretended like she

couldn’t do it.”   Ingold testified to the same, explaining that he thought Hartman’s weak

handshake “was [a] little staged.”

       This line of argument lacks merit. First, statements and actions by a decisionmaker

“outside of the decisionmaking process” cannot be the sole basis for proving pretext. E.E.O.C. v.

Ford Motor Co., 782 F.3d 753, 768 (6th Cir. 2015) (en banc) (citing Bush v. Dictaphone Corp.,

161 F.3d 363, 369 (6th Cir. 1998)). Second, even assuming that Ingold was skeptical of

Hartman’s use of FMLA leave, “[n]othing in the FMLA prevents employers from ensuring that

employees who are on leave from work do not abuse their leave.” Hall, 529 F. App’x at 440

(quoting Allen v. Butler Cty. Comm’rs, 331 F. App’x 389, 395 (6th Cir. 2009)). In fact, just prior

to meeting with Hartman, Ingold had received a report from Bailey that Hartman was engaging

in activity inconsistent with her medical restrictions. Regardless of Ingold’s skepticism, once

Hartman provided a note from her doctor that indicated she needed more rehabilitation, Ingold

was satisfied. Therefore, this incident fails to provide any evidence that retaliatory animus

motivated Dow’s termination of Hartman.




                                              - 16 -
Case No. 15-2318, Hartman v. Dow Chemical Co.


                                               V.

       “An appellate court does not set aside a jury verdict with ease,”—our standard of review

reflects our reluctance to do so. Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 795

(6th Cir. 2005). Nevertheless, where a plaintiff’s evidence of retaliatory animus ultimately rests

solely on temporal proximity, a jury’s verdict in favor of the plaintiff cannot stand. That is the

case here. For that reason, we reverse the district court and remand for an entry of judgment in

favor of Dow.

       REVERSED AND REMANDED.




                                              - 17 -
