NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0582n.06 No. 12-4032 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

STE LLA HALL , P laintif f-App ellant,

v. THE O HIO BE LL T ELE P HONE COMP ANY, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO O P I N I O N

BEFORE: BOGG S and COLE, Circuit Jud ges; and QUIST , District Judge. * QUIST, Dis tric t Judge. Stella Hall appea ls a district court’s g rant of summary judgme nt in fa v o r o f h er former employ er, The Ohio Be ll Telephone Company

. Hall alleg es that she was terminated from Ohio Be ll in reta liation for taking medical leave under the Family Medica l L eave Act. For the following

rea sons, we af

firm the district cour

t. I. BACK GR OUND Fr om 2001 to 2010, Hall worke d for Ohio Be ll as a customer service repr esenta tive. Hall’s union had a collective barg aining ag ree ment with Ohio Be ll that provided for paid FML A leave

. I n Aug ust 2007, Hall had a “bre ak down” on the sales floor during work. Shortly there afte r, Hall beg an

The Honora b l e Gordon J

. Quist, United States District J udg e for the Western District of * Michig an, sitting by

desig nation.No. 12-4032

Hall v. Ohio Bell seeing a licensed clinical social worke r who diag nosed Hall with an anxiety disorder and approve d 80 hours of FML A leave per month. Ohio Be ll also approve d the leave

. Hall beg an taking FML A leave on September 8, 2007. Whil e working for Ohio Be ll, Hall wrote and self-p u b l i s h ed two novels. On October 11, 2007, the Cleveland Call & Post newspa per published an article about Hall titled, “STEL L A, the harde st working author in Cleveland.” I n the article , Hall is quoted as say ing that publishing a book “take s hard work, perse vera nce, and deter

mination. All [are] fac tors in tr y ing to make it out here

. How far will y ou g o? Meaning , are y ou rea dy to g ive up y our Saturday or Fr iday or take off of work
to make y our drea

m c ome true? ” I n November 2007, Kimberly Miceli, the attendanc e manag er of the Cleveland Ohio Be ll call cente r, re ce i v ed a copy of the article

. Miceli was responsible for repor ting possible FML A abuse to Ohio Be ll’s Asset Protection De p ar t m ent, which conducts investiga tions. On November 20, 2007, Miceli made a “Reque st for I nvestig ation” of Hall’s FML A

use. On the reque st form, M i celi cited as the “ar ticulable suspicion of fra ud” the article and the timing of Hall’s book promotion and FML A leave

. Howeve r, Asset Protection did not conduct an investiga tion beca

use Hall was also on overla pping inte rmittent disability leave , and company policy require d the Disability

Service Center to conduc t such investiga tions. Asset P rotec tion informed 1 Miceli that Miceli could forward the reque st to Hall’s dis ability case manag er f o r re view. I t does not appea r fr om the rec ord that Miceli pursue d that option.

Hall took overla

pping disa

bility leave on September 17, 2007, a nd November

8, 2007. 1 2No. 12-4032

Hall v. Ohio Bell

Be g inning in 2008, Hall’s work perf ormanc e deter iorated. I n Fe bruar y , Hall rec eived a twoday suspension for violating the Ohio Be ll/AT&T Code of Business Conduct for misuse of company time by rema ining on a call for 52 minutes without a customer on the line. Hall’s suspension letter stated that a future violation of the Code of Conduct “will result in disciplinary ac t i o n u p to and including dismiss al.” I n S ep t em b er 2009, Ohio Be ll place d Hall on a Perfor mance I mprovement Plan based on Hall’s poor work perf ormanc e. I n October 2009, Hall rec eived a “re -state” of a First Writt en Warning for “continued l ac k of consistency in overa ll perf ormanc e.” The letter stated, “[s] hould y ou fail to ac hieve improve ment, y ou may be subjec t to f

urther disciplinary action up to and including dismiss al.” Hall also deve loped a pattern of taking FML A leave

. During 2008, Hall exhausted all 480 hours (12 wee ks) of FML A leave by mid-y ear but worke d the rema i n d er of the y ear with reg ular attendanc e. Be g inning in ear ly J anuar y 2009, Hall resumed taking FM L A l eave . I n Marc h 2009, based on Hall’s pattern of absenc e, Miceli ag ain reque sted an investi gati on by Asset Protection, which observe d Hall during her FML A leave time. I n Aug ust 2009, Asset Protection terminated the investiga tion without discovering evidenc e of FML A abuse. During 2009, Hall ag ain exhausted her FML A hours by

mid-y ear but worked the rema inder of the y ear with reg ular a ttendance

. I n J an u ary 2010, Hall resumed taking FML A leave

. Hall repor ted FML A leave ever

y M o n d ay that she was supposed to work in ear ly 2010. On or about Fe bruar y 12, 2010, Miceli reque sted an investiga tion of Hall on the basis of Hall’s pattern of absenc e and Miceli’s discovery , in a public work are a, of a hotel rese rvation confirma tion for four g uests in the name of Hall’s close

3No. 12-4032

Hall v. Ohio Bell

fr i end and colleag ue, S aniy y ah Hughe s, for a three -day wee kend. Be cause Hall had taken FML A leave ever

y Monday , Miceli suspected Hall would take a t rip with Hug hes and Asset Protection would observe Hall at the hotel during FML A leave

. Howeve r, Hall did not take FML A leave that Monday

. Fr om J an u ar y t o J uly 2010, Hall worke d on supervisor Shaun Smit h’s sales team. Hall alleg es that at team meeti ng s Smit h would direc t toward Hall comments about FML A-re lated attendanc e patterns. Under Smit h, Hall rec eived poor evalua tions, which Hall attributes to Smit h’s “nitpick[ing]” of Hall’s perf ormanc e. On Fe bruar

y 26, 2010, Hall complained to employ ee rela tions manag er L ee J ones t hat S mith was harassing her for t aking FML A l eave . Hall allege d that Smit h made statements such as, “if y ou continue to show a pattern, we will do something about it” and “if I seem to that [si c] I am picking on y ou, my mother died and I came to work the next day .” Hall also alleg ed that when she called to repor t FML A leave , sometimes Smit h would make statements about her absenc es. Hall asked J ones to remove her from Smit h’s team. Hall also expli citly reque sted that her complaint rema in anony mous. As a result, J ones did not inform Smit h that Hall had complained about FML A-re lated hara ssment. Howeve r, J ones did approa ch Smit h ’s supervisor, Fr eeze McCarte r, about Smit h’s behavior without mentioning Hall by name. McCarte r confirme d that he

was prese nt at the team coac hing session at which Smit h made comments rela ted to F ML A leave

. McCarte r told J ones that Smit h’s comments could have been more sensitive and he would work with Smit h to improve his coac hing. McCarte r, howeve r, did not express any conce rn that the comments constituted hara ssment or wer e direc ted at any partic u la r e mploy ee. J ones did not further investigate,

4No. 12-4032

Hall v. Ohio Bell
but h e k ep t a rec ord of Hall’s hara ssment complaint and, on Marc h 24, 2010, noted: “Closed investiga tion as the employ ee Stella Hall did not want any one in the office to know that she repor ted this claim.” Hall was on Smit h’s sales team for approximately six months befor e she was transfe rre d to Tiffa ny Fe rre ll’s team on J uly 1, 2010

. On or about J uly 23, 2010, Hall rec eived a First Writt en Warning for lack of consistency in overa ll perf ormanc e, based in part on h er perf ormanc e under Smit h. Hall does not alleg e that F err ell hara ssed Hall about he r F ML A leave

. On Aug ust 26, 2010, Hall’s nine-y ear -old step-g randc hild, Aria Smith, di ed. Aria w as the daug hter of Hall’s step-child, Domain Hall. On Aug ust 30, 2010, Hall informed Miceli that her “g randc hild” had died and prese nted Miceli with a letter f rom E.F. B oy d funer al home identifying Aria as Hall’s “g randc hild.” Hall asked how much funer al leave she could rec eive. Miceli thought it was unusual that Hall had arr ived with a letter from the funer al home beca use usually employ ees obtained a letter afte r an initial meeting or afte r the fu n er al , n o t i n anticipation. Miceli rea d the pertinent sec tion of the collec tive barg aining ag ree ment aloud to Hall: 18.05 Employ ees absent due to death of a child, step-child, spous e o r Reg istered Domestic Partner, pare nt or any rela tive listed in 18.06 or 18.07 who resides in the same house with the employ ee will be excused from duty without loss of pay for up to a maxi mum of three (3) work day s (includi n g t ra v el time) beg inning with the day of death throug h the day of the fune ral. I n addition, in the event of a d ea t h as noted here in, employ ees shall upon reque st be excused from schedule d time for two (2) additi o n al u n paid day s. Paid Vac ation Day s or Ex cused W ork Day s may be subst ituted fo r t hese day s at the employ ee’ s option. 18.06 Ex cept as provided for in para g raph 18.05, employ ees absent due to the dea th o f a step-par ent, brother, sister, fathe r-in-la w, mother-in-la

w, son-in-law, daug hter-in- law, g randpa

rent or g randc hild w il l b e e xc u s e d f r o m d u ty w it h out 5No. 12-4032

Hall v. Ohio Bell

loss of pay for up to a maxi mum of two (2) work day s (including trave l time) beg inning with the day

of dea th throug h the day of the funer al. I n addition, in the event of a death as no t ed h er ei n , employ ees shall upon reque st be excused from schedule d time for two (2) addit i o n al u npaid day s. Paid Vac ation Day s or E x cused W ork Day s may be subst ituted for these day s at the employ ee’ s option. 18.07 Ex cept as provided fo r i n para g raph 18.05[,] employ ees absent due to the death of a brother- in-law, sister-in-law or spouse’s g randpa rent will be excused from duty without loss of pay for up to one (1) work day (including trave l time) beg inning with the da y of dea th throug h the day

of the fune ral. Miceli confirme d with H all that Hall meant “g randc hild,” but the rec ord is unclea r whether Miceli asked H all that question befor e or a fter r eading the languag e of the ag ree ment to Hall. Around the same time, Hall informed her supervisor, Fe rre ll, that Hall had lear ned of Aria’ s death on Fa cebook. They discussed the upcoming funer al. Fe rre ll found it “odd” that Hall “showe d

no remorse in discussing the death.” Fe rr el l o ff er ed to post funer al service information on the

co m p an y notification board, but, in Fe rre ll’s words, Hall “re fused.” Fe rre ll also tried to obt ai n information about the funer al service so that she could attend, howeve r, Hall res p o n ded with 2 confusing text messag es. The first text messag e from Hall t o Fe rre ll provided an address, but the second text messag e said, “2nite @ 8pm 3 lutheran and putius @ not 3

. ” C o nfused about the messag e’s meaning , Fe rre ll ca l l ed E

. F. Boy d funer al hom e, and was tol d that there was no rec ord of Aria Smit h.

Fe rre ll test i fi ed that it was common for team members at Ohio Be ll to attend the funer als 2 of co-w orker s’ family members and Fe rre ll had attended sever al funer als. Additionally , she testified that it was standar d prac tice to post funer al servic e informa tion on a hallway

notification board. 6No. 12-4032

Hall v. Ohio Bell
As permitted by the collective barg aining ag ree ment for individuals seeking funer al leave for the death of a biologica l g randc hild, Hall took two paid and two excused, unpaid day s of leave

. On September 3, 2010, while Hall was on funer al leave , Fe rre ll and Miceli saw Hall at work. Hall stated that s h e h ad co m e to pick up her pay chec k. After Fe rre ll repor ted her conce rns that Hall had committed funer al l eave fra ud, on September 10, 2010, Miceli submitt ed an investiga tion reque st to Asset Protection. Miceli used a standard “F ML A/STD/W C - Request for I nvestig ation” form, the

same form she had used to place investiga tion reque sts rela ted to Hall’s FML A leave

. One line on the form states “Number of FML A Hours Remaining ,” next to which Miceli wrote “1.75 hrs.” Ron Wil liams, lead asse t protection ana ly st, conducted a n investiga tion. On September 16, 2010, Hall rec eived a Final Writt en Warning for taking two unauthorized brea ks during a shift. The war ning stated that “[a]ny further char g eable absenc es, tardies, or char g eable disabiliti es could lead to more serious corr ective action, up to and including, termination of y our employ

ment.” On September 23, 2010, Wil liams contac ted E.F. Boy d funer al home, which has m u l t i p l e locations, and c onfirmed that ther e wa s an Aria Smit h in the funeral home’ s rec ords, althoug h the funer al home had no additional information because the family ultimately made its own funer al

arr ang ements. Wil liams could not find any obituaries for Aria. On September 28, 2010, Wil liams
contac ted the Cuy ahog a cor oner’ s office , which could not conf irm Aria’ s death. On September 30, 2010, Wil liams inter viewed Hall about her funer al leave in the prese nce of Fe rre ll and two union repr esenta tives. After the interview, Wil liams beg an to prepa re Hall’s written statement pursuant to company policy

. Howeve r, approximately 15 minutes later, Wil liams 7No. 12-4032

Hall v. Ohio Bell
decide d that he had some additional questions, so he asked Hall and the union representa tives to return to the confe renc e room. Fe rre ll was not prese nt. Wil liams asked Hall if Aria’ s mother, Domain Hall, was Hall’s biologica l da ug hter. Hall declined to a nswer, a nd a union re prese ntative asked for a rec ess. When they returne d to the confe renc e room, Wil liams repe ated the question and Hall stated that Doma in Hall was not her biologica l daug hter. The same day , Hall’s s u p er v i s o rs issued Hall a suspension letter stating, “[b] ased on a depar tment and AT& T As s et Protection I nvestig ation, we have deter mined that y ou have demonstrated behavior that may be deemed a Code of Business Conduct Violati o n . . . . [Y] ou are

now being Suspended Pending I nvestig ation[.] ” Wil liams continued his investiga tion. On October 13, 2010, he obtained a death cer tificate for Aria from Cleveland City Hall, stating that Aria had died

on Aug ust 26, 2010. L ater that day , Wil liams completed his investiga tion by issuing an investiga tion repor t and provided the repor

t t o Gene ral Manag er Scott Wil lis. Hall rec eived a revie w board hear ing. After the hear ing, Wil lis revie wed Wil liams’s investiga tion repor t and Miceli’s reque st for investiga tion and concluded that Hall had “intentionally eng ag ed in fraud.” Ohio Be ll terminated Hall on Novembe r 9, 2010. II. DISCUSSIO N A. Stand ard of Review This court revie ws a district court’s g rant of summary judgme nt de novo. Chapman v. United Auto W orkers Local 1005 , 670 F.3d 677, 680 (6th Cir. 2012)

. “Summary judgme nt is appropriate only if the pleading s, depositions, answe rs to interrog atories, and aff idavits show there is no g enuine issue as to any materia l fac t and the moving party is entitled to judgme nt as a matter of law.” Bobo 8No. 12-4032

Hall v. Ohio Bell

v. United Parcel Serv., Inc. , 665 F.3d 741, 748 (6th Cir. 2012). The burden to show that there is no g enuine issue of materia l fac t falls upon the party seeking summary judgme nt. Id. I n evalua ting the evidenc e, we must draw all rea sonable infere nce s in favor of the non-moving party

. Donald v. Sybra, Inc

. , 667 F.3d 757, 760 ( 6th Cir. 2012). To survive a summary judgme nt motion, t he nonmoving party must prese nt sufficie nt evidenc e for a rea sonable jury to find for the non-moving party

. Id. B. P ret ext To establish a prima f

acie case of FML A re taliation, a plaintiff must establish that: (1) she eng ag ed in an a ctivity

protec ted by

the FML A; (2) he r employ er kne w that she wa s exercising her FML A rig hts; (3) h er employ er took an adver se employ ment action; and (4) there was a causa l

connec tion betwee n her protected FML A activity and the adver se action. Kill ian v. Y o r o z u A u to. Tenn., Inc. , 454 F.3d 549, 556 (6th Cir. 2006). Once a plaintiff has established a prima fac ie case , the burden shifts to the employ er to pr esent a leg itimate, non-re taliatory rea son for terminating the plaintiff. Seege r v. Cincinnati Bell Tel. Co. , 681 F.3d 274, 284 (6th Cir. 2012). I f the employ er

succe eds, the burden shifts back to the plaintiff to show that the employ er’ s proff ere d rea son was a prete x t for unlawful discrimination. Bryson v. Regis Corp. , 498 F.3d 5 6 1 , 5 7 0 (6th Cir. 2007). “Althoug h the burdens of production shift, the ultimate burden of persua ding the trier of fac t that the defe ndant i ntentionally discriminated aga inst the pl aintiff remains at all times with the pl aintiff.” Id. (interna l quotation marks, citations, and altera tions omitted). To establish prete x t, a plaintiff is require d to show by

a pre pondera

nce of the evidenc e that: (1) the proff ere d rea son had no basis in fac t, (2) the rea son did not actua lly motivate the plaintiff’s disch ar ge, or (3) the rea son was 9No. 12-4032

Hall v. Ohio Bell
insufficient to motivate discharg e. Manzer v. Diamond Shamrock Chem. Co. , 29 F.3d 1078, 1084 (6th Cir. 1994), overruled on other grounds by Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167 (2009). 1. Act ual Motivation f or Ter m ination

a. Tem poral P roxim ity and H eightened Scrutiny Hall first arg

ues that the temporal proxi mity betwee n her first FML A leave reque st and Ohio Be ll’s first investiga tion, combined with Ohio Be ll ’s “h ei gh tened scrutiny ” of Hall, is sufficie nt evidenc e of pr etext. “Unlike its role in establishing a prima fac ie case , ‘the law in this circ uit is clea r th at temporal proxi mity cannot be the sole basis for finding prete x t.’” Seege r , 681 F.3d at 285 (quoting Donald , 667 F.3d at 763). Howeve r, “‘suspicious timing is a strong indicator of prete x t when

acc ompanied by some other, independe nt evidenc e.’” Id. (quoting Bell v. Prefix, Inc. , 321 F. App’x 423, 431 (6th Cir. 2009)). Courts measure temporal proxi mity from the time an employ er lear ns of

a protec ted activity to the time of the adver se employ ment action. See, e.g. , Cecil v. Louisvill e W ater Co. , 301 F. App’ x 490, 502 (6th Cir. 2008). Hall ar g ues that the two mont hs betwee n Hall’s first FML A l eave reque st and Ohio Be ll’s fi rst investiga tion of Hall is evidenc e of prete x t, at l east in combination with Ohio Be ll’s scrutiny of Hall. The basis of Hall’s “heig htened scrutiny ” arg ument is that Ohio Be ll twice investiga ted Hall for F ML A fra

ud and that Smith allege dly hara ssed Hall for

taking FML

A leave

. 3

Ohio Be ll arg ues that Hall failed to raise the issue of heig htened scrutiny befor e the district 3 court and is theref

ore pr eclude d from ra ising it on appe al. Howe ver, w e nee d not decide the issue beca use, eve n if Hall had r aised the issue, H all’s ar g ument would still fail as a matter of la

w. 10No. 12-4032

Hall v. Ohio Bell
“‘N othing in the FML

A preve nts employ ers from ensuring that employ ees who are on leave from wor k do not abuse their leave .’” Allen v. Butler Cnty. Comm’rs , 331 F. App’x 389, 395 (6th Cir. 2009) (empha sis omitted) (quoting Calli son v. City of Philadelphia , 430 F.3d 117, 121 (3d Cir. 2005)); see also Stonum v. U.S. Airways, Inc. , 83 F. Supp. 2d 894, 901 (S.D. Ohio 1999) (re quiring

a defe ndant to a

rticulate “ ‘par

ticularized fac ts’ to suppor t its termination decision, not its decision
to conduct surveillance ” (empha sis in orig inal)). Howeve r, “whe n an ‘employ er . . . waits for a leg al, l egi t i mate rea son to fortuitously materia liz e, and then uses it to cover up his true, longst an d i n g motivations for firing the employ ee,’ th e empl oy er’ s actions constitute ‘the very definition of prete x t.’” Hamilton v. Ge n. Elec. Co. , 556 F.3d 428, 436 ( 6th Cir. 2009) (quoting Jones v . Potter , 488 F.3d 397, 408 (6th Cir. 2007)). The burden is on the plaintiff to introduce evidenc e which tends
to prove that “an illega l motivation was more likely th an that offe red by the defendant.” Manzer , 29 F.3d a t 1084. I n this case , Ohio Be ll has articulated par ticularized fac ts to support its investiga tions into Hall’s FML A leave

. Ohio Be ll ma in tained contempora

neous rec ords of its rea sons for investigation. Although it wa s only two months afte r Hall beg an taking FML A leave , Miceli’s first investigation reque st was a direc t result of a newspa per article about Hall sug g esting that Hall may have taken paid FM L A l ea v e to write her book. I n 2009, Miceli ag ain reque sted an FML A fra ud investiga tio n beca use she observe d that Hall had exhausted her FML A leave by mid-2008, worke d the rema inder of the y ear with reg

ular attendanc e, and resume d taking fre quent FML A leave starting at the beg inning of 2009. Hall’s pattern of absenc e continued and, i n 2 0 1 0, she repor ted FML A leave

ever y Monday that she was schedule d to work. There fore , when Miceli lear ned of a hotel rese rvation 11No. 12-4032

Hall v. Ohio Bell
for a three -day wee kend by Hall’s close friend and cowor ker, Miceli was rea sonable to suspect that Hall might repor

t F ML A leave that Monday while actua lly stay ing a t the hotel with he r friend. At

ever y turn, Ohio Be ll articulated a leg itimate, non-discriminatory rea son for investig ation. Hall also arg ues that Smit h’s alleg ed hara ssment of Hall for taking FML A leave is evidenc e of heig htened scru t i n y . Howeve r, there is no evidenc e that Smit h was involved in Hall’s investiga tion or termination for funer al leave fra ud. By the time Hall was investiga ted for a funer al leave violation, Hall had not worke d for Smith for seve ral months. 4 Take n toge ther, the temporal proxi mity and alleg ed heig htene d s cr utiny are insufficient evidenc e of p retex t. First, the better measure ment of t empora l proxi mity is three y ear s—the time betwee n Hall’s first FML A reque st and her termination—bec ause the ear lier FML A investiga tions did not result in any adver se employ ment action. Second, the rec ord does not support that Ohio Be ll targ eted Hall for investiga tion mere ly beca use she took FML A leave

. Rather, Ohi o Be ll has prese nted evidenc e that it invest i gat ed Hall in g ood faith based on evidenc e sug g esting that she might have been abusing paid FML A leave

. Finally , Smit h’s alleg ed hara ssment of Hall is not evidenc e of pr etext because Smit h was not involved in the dec ision to t erminate Hall. Thus, eve n in combination, the temporal prox i m ity and alleg ed heig htened scrutiny are insufficient to demonstrate tha t “an illeg al motivation was more likely than that offe red by

the def endant.” Id.

Hall also arg ues that Ohio Be ll’s failure to investiga te Hall’s hara ssment complaint ag ainst 4 Smit h is evidenc e of heig htened scrutiny

. Howeve r, Hall’s arg ument is not supported by the fac tual rec ord. First, Hall reque sted that she rema in anony mous, so Hall cannot now arg ue that J ones should have confronte d Smit h about harassing Hall. Second, the rec ord shows that J ones did investigate Hall’s complaint by contac ting Smit h’s di re ct supervisor, McCarte r. Once J ones rec eived a satisfac tory

response , J ones closed the complaint. 12No. 12-4032

Hall v. Ohio Bell

b. Discrim inatory Com pensation Policy H a ll a r g u e s th at Ohio Be ll’s compensa tion policy is evidenc e of prete x t beca use it encour a g e s supervisors to “sele ctively punish” FML A users. Ha l l al l eg es that Ohio Be ll lowers sales repr esenta tives’ sales g oals proportionately with their FML A use, but does not lower team leade rs’ sales g oals. Hall arg ues that this poli cy decr ease s the likelihood that an FML A user’ s team lea der will meet his sales g oals and e ncoura g es F ML A-ba sed discrimination. The fac tual rec ord does not support Hall’s arg ument. As the district court found, the rec ord is unclea r as to whether leade rs are penaliz ed for the lack of sales by employ ees on F ML A l eave . All pertinent evidenc e comes from Smit h’s deposition. Smit h first testified that leade rs are not held

acc ountable for sales during “prote cted [FML A] time.” Howeve r, Smit h also testified that a leade r’s g ross sales can be aff

ecte d by an employ ee “who’ s taken extensive amounts of leave .” Nonethele ss, Smit h stated that even if a leade r is aff ecte d by loss of sales due to leave , employ ees taking FML A leave are sprea d among the sales teams, so FMLA l ea v e d oes not disadvantag e any one team. Moreove r, Smit h stated that even when employ ees t ak e ex tensive FML A leave , Smit h is able to exceed his sales g oals, so FML A leave does not pre s en t a p ro blem. Thus, the rec ord does not support Hall’s arg ument that Ohio Be ll’s compensa tion sy stem encour ag es leade rs to selec tively punish FML A users. Moreove r, there is no evidenc e that the alleg edly unfavor able policy influence d Wil lis’s decision to terminate Ha ll. 2. Insu ff

icient Basis f

or Ter m ination Finally , Hall arg ues that Ohio Be ll’s proff ere d rea son for termination was an ins u ff i cient basis for ter

mination because Ohio Be ll had never terminated a

n employ ee for funeral leave f raud 13No. 12-4032

Hall v. Ohio Bell
and bec ause O hio Be ll knew Hall soug ht funer al l eave for a step-g randc hild but did not terminate her until it realized it could not prove its theory that Hall fa

brica ted Aria ’s dea th. An arg ument for insufficient basis “‘or dinarily

. . . consists of evidenc e that other employ ees, part i cularly employ ees not in the protec ted class, wer e not fired even though they eng ag ed in substantially

identical conduc t to that which the employ er contends m otivated i ts discharg e of the plaintiff.’” Jones , 488 F.3d at 407 (quoting Manzer , 29 F.3d at 1084). “[T] o be deeme d ‘similarly situated,’ the individuals with whom the plaintiff seeks to compar e his/her trea tment must have dealt with the same supervisor, have been subject to the same standards and have en gage d i n t h e same

c o n d u ct without such differ entiating or mitigating circ umstances th a t w o u ld d is ti n g

u is h th e ir c o n d

u c t or the e mploy er’ s trea tment of them for it.” Mitchell v. Toledo H osp. , 964 F.2d 577, 583 ( 6th Cir. 1992). Ag ain, the rec ord evidenc e does not support Hall’s arg ument. First, Hall’s theory that Ohio 5 Be ll kne w that Hall did not have a nine-y ear -old biologica l g randda ug hter is ba sed on the fa ct that Hall was only 41 y ear s old and that Hall had worke d at Ohio Be ll since 2001, so that her supervisors

wer e gene rally awa

re o f t h e ag es of her biologica l children. Howeve r, t here is no evidenc e in the

rec ord t hat any one at Ohio Be ll knew that Aria w as not Hall’s biolog ical g randc hild. I t is unclea r whether Hall or Fe rre ll communicated to Miceli or Wil liams that Aria was nine y ear s old. Second, Hall’s theory is premised on the fac t that Wil liams continued to investiga te Hall’s funer al leave afte r the September

30, 2010 interview a t w hich Hall admitted Ar ia was not he r biolog ical g randc hild.

The p ar t i es d o not dispute that Ohio Be ll had not previously terminated an employ ee for 5 funer al leave fra

ud. 14No. 12-4032

Hall v. Ohio Bell
The recor d, howeve r, shows that as soon as Ohio Be ll lear ned that Aria was not Hal l ’s b i o l o gi ca l g randc hild, it issued Hall a notice of s u s p ension pending investiga tion. Wil liams rec eived information from the funer al home on September 2 3, 2010 that the name Aria Smit h was in their

rec ords and continued his investiga tion until h e had rec eived confirma tion of Aria’ s death from Cleveland Ci ty Hall on October 13, 2010. Hall, however, has not offer ed evide nce to support he r arg ument that the investiga tion was a depar ture from Ohio Be ll’s normal prac tice, and the law does
not require that an investiga tion be conducte d perf ectly

. See Carson v. Ford Motor Co. , 4 1 3 F. App’x 820, 823–24 (6th Cir. 2011) (re jecting a plaintiff’s arg ument that the proce dural inadequa cies of an investiga

tion wer e sufficie nt evidenc e of prete x t); Smith v. Chrysler Corp. , 155 F.3d 799, 807 (6th Cir. 1998). Hall has also failed to prese nt evidenc e of any simil arly situated employ ee who was not fired for a simil ar funer al leave violation. See Clayton v. Meijer, Inc. , 281 F.3d 605, 611 (6th Cir. 2002) 6 (obser ving that the “ulti mate .

. . question” i s whether there is “an a lleg ation that other e mploy ees involved in a cts

. . . of comparable seriousness

. . . wer e never theless reta ined” (interna l quotation

Hall also arg

ues t hat Ohio B ell’s fa ilure to discipline Smit h, J ones, McCarter, and Fe rre ll 6 for Code of Conduct violations is evidenc e that funer al leave was an insufficient basis for termination. The alleg ed violations by Smit h, J ones, and McCarte r for failure to investiga te Hall’s hara ssment c omplaint a

re a ddresse d in footnote 4 supra . Reg arding Fe rre ll, Ha ll a lso a lleg es, and Ohio Be ll does not deny , that Fe rre ll lied about the exis tence of an investiga tion into Hall’s funer al leave

. Nonethele ss, beca

use Fe rre ll was not simil arly situated to Hall and did not eng ag e in simil ar conduct—F err ell did not intentionally rec eive pay to which she was not entitled—Fe rre ll’s violation is not evidence that funer al leave fra ud was a n insufficient ba sis for termination. 15No. 12-4032

Hall v. Ohio Bell
marks omitted)). Thus, for purposes of her insufficient basis arg ument, Hall has cre ated a g enuine issue of mater ial fac t that a fune ral lea ve violation was insuffic ient g rounds for te rmination. Finally , Ohio Be ll has articula ted particula ri z ed fac ts to support an honest belief that Hall eng ag ed in intentional funer al leave fra ud. For a proff

ere d rea son to be leg itimate, a defe ndant must have had an honest belief in the rea so n fo r t he termination. Seege r , 681 F.3d at 285–86. “‘[A]n employ er’ s proff

ere d rea son is considere d honestly held wher e the employ er ca n establish it

rea sonably reli[ed] on particula rized fac ts tha t w ere befor e it at the time the decision was made.’ ” Id. at 285 (quoting Joostberns v. United Parcel Servs., Inc. , 166 F. App’x 783, 791 (6th Cir. 2006)). “I n deciding whether an employ er rea sonably relied on the particula rized fac ts then befor e it, we do

n o t re q uire that the decisional proce ss used by the employ er be optimal or that it left no st o n e unturned. Rather, the key inquiry is whether the employ er made a rea s o n ab l y informed and considere d decision befor e taking an adver se employ ment action.” Chrysler Corp. , 155 F.3d at 807. Ohio Be ll’s proff

ere d rea son for Hall’s termination is that Hall intentionally violated the funer al leave policy

. Hall denies that the violation was intentional. Be fore terminating Hall, Gene ral Manag er Wil lis rea d M ic e li ’ s r e q u e s t f o r a n investiga tion and Wil liams’s investiga tion repor t. Wil lis conclude d that Hall intentionally violated the funer al leave policy on the basis of the following fac ts: Hall (1) lear

ned of the death on Fa cebook, (2) sent her sales coac h a text messag e that did not make

sense when her coac h attempted to attend the funer al, (3) showed up at the call ce nter on a funer al leave day to pick up her pay chec k, (4) discussed the funer al leave require ments with Miceli prior to taking funer al leave , (5) told Mice li that her “g randda ug hter” died instead of disclosing that it wa s

16No. 12-4032

Hall v. Ohio Bell
her step-g randda

ug hter, and (6) initially ref used to answe r whether Aria’ s mother was Hall’s biologica l daug hter. Acc ording to Wil lis, Ohio Be ll “almost alway s discharg es” an employ ee who intentionally rec eives p ay t o wh i ch she is not entitled, including those who commit FML A leave fra ud and funer al fra

ud. Wil lis had the authority to offe r Hall a “re turn to work letter” but declined to do so beca

use Hall “did not ha

ve a long- term history without perfor mance issues and discipline that would have led [hi m] to consider makin g an exception to the usual decision to terminate.” There fore , even if Hall did not intentionally violate the funer al leave policy , and even if Wil liams’s investiga tion was imperfe ct, Ohio Be ll has articula ted particula rized fac ts upon which it could have

rea sonably

relied to for

m an honest belief

that Hall had intentionally violated the fune ral policy

. 7 III. CONCLUSION For the fore g oing rea sons, the district c ourt’s g rant of summary judgme nt in favor of Ohio Be ll is AF F IRMED

.

Be cause Hall has failed to sa tisfy her burden of showing that Ohio Be ll’s proff ere d rea son 7 for Hall’s termination was a prete x t for reta liation, we need not decide whether the distr i ct court err ed in finding that Hall had a serious hea lth condition entitl ing he r to FML A leave

.

17