NOT RECOMMENDED FOR PUBLICATION

File Name: 15a0270n.06

No. 14-3522

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAM HALE,

Plaintiff-Appellant,

v.

MERCY HEALTH PARTNERS,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE SOUTHERN 

DISTRICT OF OHIO

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. 
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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 honestbelief 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 honestbelief 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 agediscrimination 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-honestbelief 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,4but 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.
No. 14-3522

Hale v. Mercy Health Partners

-18-

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.