NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0479n.06

Case No. 15-2318

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KIMBERLY HARTMAN,

Plaintiff-Appellee,

v.

DOW CHEMICAL COMPANY,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

MICHIGAN

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

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

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

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

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

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

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

Dow.

I.

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

Hartman primarily performed administrative support for attorney Toby Threet and paralegal 
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Stacy McKeon. The majority of Hartman’s work required her to be online and connected to 

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

the office.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

doctor’s note, which she thought was unusual.

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

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

that allowed her to have every other Friday off if she had completed the necessary hours. 
Case No. 15-2318, Hartman v. Dow Chemical Co.

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

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

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

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

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

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

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

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

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

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

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

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

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

computer for personal matters. 

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

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

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

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

that her VPN records might not reflect this because she did not always connect to the VPN when 

 

1 Hartman was supposed to work a total of eighty hours over a nine-day period, which allowed her to take 

every other Friday off since she would have already worked all her required hours. McKeon explained that while 

Hartman normally left around four o’clock, McKeon noticed that she had been leaving around two or three o’clock 

instead. 

2 Not long after Hartman went on leave, Chauvette went to Threet for help in completing a task that 

Hartman had left for Chauvette. Threet discovered that this task was one that had been assigned to Hartman “long 

ago” and involved matters that were months or even a year late. Additionally, Threet discovered that Hartman had 

been incorrectly completing invoices. Threet also found out that Hartman was not being assigned much work by 

McKeon due to McKeon’s fears that it would not be done correctly. This is when they started paying attention to all 

of the “non-work activities” that Hartman engaged in, such as texting or spending time on Facebook. 
Case No. 15-2318, Hartman v. Dow Chemical Co.

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

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

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

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

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

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

ERM. Participants in the ERM3considered only the objective evidence: Hartman’s gate 

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

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

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

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

had nothing to do with her leave.

Hartman subsequently commenced this action, alleging that her termination constituted

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

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

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

the retaliation claim. 

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

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

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

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

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

 

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

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

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

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

of Threet—as support for her FMLA claim. 

II.

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

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

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

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

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

III.

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

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

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

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

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

[Act].” 29 U.S.C. § 2615(a)(2). 

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

(1) [s]he engaged in an activity protected by the Act; (2) that this exercise of h[er] 

protected rights was known to the defendant; (3) that defendant thereafter took an 

employment action adverse to the plaintiff; and (4) that there was a causal 

connection between the protected activity and the adverse employment action.

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

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

Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). Finally, once the employer provides its 
Case No. 15-2318, Hartman v. Dow Chemical Co.

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

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

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

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

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

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

IV.

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

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

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

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

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

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

A.

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

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

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

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

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

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

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

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

regard to an employer’s proffered reason for discharging an employee.” Majewski v. Automatic 
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Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citing Smith v. Chrysler Corp.,

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

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

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

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

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

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

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

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

was primarily based on a personal opinion). 

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

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

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

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

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

committing timecard fraud. 

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

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

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

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

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

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

155 F.3d at 807-08. Instead, she must focus on the investigatory process and the resulting 
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decision. See Seeger, 681 F.3d at 285-86. This requires a specific showing that the employer’s 

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

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

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

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

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

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

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

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

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

was satisfactory. 

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

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

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

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

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

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

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

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

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

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

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

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

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B.

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

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

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

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

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

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

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

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

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

Manzer, 29 F.3d at 1084).

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

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

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

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

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

the jury. 

1.

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

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

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

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

Hartman’s absences shortly after Hartman sent an email to her co-workers regarding her intent to 
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use FMLA leave. Additionally, the district court found relevant that not only did McKeon 

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

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

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

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

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

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

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

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

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

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

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

employee violations regardless of the use of FMLA leave. 

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

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

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

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

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

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

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

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

frustration with her FMLA leave and not her alleged misreporting of work time after her return.”
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In Lamer, during the plaintiff’s tenure with his employer, he had “exhibited a pattern of 

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

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

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

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

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

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

him. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

issues with Hartman after she gave notice of FMLA leave, there is no indication that Ingold was 
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aware of any problems before she took leave. For Lamer to be relevant, Ingold would have 

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

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

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

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

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

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

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

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

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

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

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

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

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

2. 

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

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

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

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

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

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

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

456, 477-78 (6th Cir. 2002). Peters applies when assessing whether a comment in the workplace 
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reflects a bias on the part of the employer toward a protected class or protected activity. 

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

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

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

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

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

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

Jack, I have an update for you. Kim is taking her AFO (alternate Friday off) 

today. My understanding is that, in order to get an AFO, one must work an extra 

hour (approximately) on the other workdays of the two-week period. So far as I 

can determine, Kim has not been doing that. She has been arriving after 8 AM 

(usually in the range of 8:05 to 8:15), and usually leaves by 4 PM. Per Stacy, 

Kim has been taking at least an hour for lunch each day, which means the 4 PM 

departures (or earlier) do not constitute the use of her lunch hour. So instead of 

working approximately 9 hours per day to qualify for the AFO, she has mostly 

been working slightly less than 7 hours per day. And she still took the AFO. At 

first glance, this would appear to be time card fraud. It would be the second 

identified instance. (The first would relate to Connie Bailey’s account, when Kim 

was off work.) Kim is no longer on medical restrictions, so that is no longer an 

issue.

It also appears that Stacy, Dana[,] and I have all noted that when Kim is in the 

office, she spends an unusual amount of time doing things other than work. I 

have seen Kim texting a lot. Stacy says Dana has encountered Kim doing 

Facebook on several occasions. Granted, everyone does some amount of personal 

stuff, and that’s OK. But we really don’t see a lot of work output from Kim. 

Meanwhile, Dana is doing most of Kim’s work. Dana is largely past the learning 

curve, and is out-performing Kim. And Dana is looking for other jobs so that she 

can get benefits.

Do we have enough now to take action? Please?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3.

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

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

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

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

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

fraud while she was on leave, she might later file a lawsuit claiming that the action was because 
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she was on leave.” However, when asked about that conversation, Ingold denied that it ever 

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

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

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

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

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

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

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

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

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

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

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

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

that employee is engaged in a protected activity. 

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

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

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

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

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

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

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

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

concerned that if an ERM was held concerning Hartman, she might file suit.
Case No. 15-2318, Hartman v. Dow Chemical Co.

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4. 

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

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

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

[her] recovery.” 

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

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

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

handshake “was [a] little staged.” 

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

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

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

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

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

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

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

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

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

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

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

motivated Dow’s termination of Hartman. 
Case No. 15-2318, Hartman v. Dow Chemical Co.

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V.

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

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

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

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

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

favor of Dow.

REVERSED AND REMANDED.