Pam HALE, Plaintiff-Appellant, v. MERCY HEALTH PARTNERS, Defendant-Appellee, 617 F. App'x 395

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 Cler-mont campuses, she spent most of her time at the Anderson campus. 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 Cler-mont 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 Cler-mont’s CEO, Gayle Heintzelman, received a phone call about an inventory problem from a pharmacist. 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 óf 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 ©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 wafe to prepare a

schedule without Hale on it. 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 arid 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 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, 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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (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 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 Vhether 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.

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.

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 “[tjhis 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 plaintiffs 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; 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 Fed.Appx. 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 changing]” timesheets. And, there is ample evidence to support Mercy’s belief that Hale “ehange[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 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 thatkhe 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 time-cards 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, 760 N.E.2d 385 (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 plaintiffs dismissal would jeopardize the public policy (the jeopardy element)”; (3) “the plaintiffs 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, 652 N.E.2d 653 (1995) (emphases omitted). The first and second elements 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, 652 N.E.2d 653. 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^], federal or state statutes, administrative rules and regulations, or common law.” Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 174, 956 N.E.2d 825 (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, 971 N.E.2d 962 (2012). Hale claims Ohio Administrative Code § 4729-17-03 states the relevant clear public policy. 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 plaintiffs 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 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, 914 N.E.2d 1109 (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 Fed.Appx. 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 must indicate to a reasonable employer that [she] is invoking governmental policy in support of, or as the basis for, [her] complaints.” Avery, 286 Fed.Appx. 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. . 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.