                       NOT RECOMMENDED FOR PUBLICATION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.
No. 14-3522
Hale v. Mercy Health Partners


        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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