Scott v. FirstMerit Corp.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0060n.06
Filed: January 23, 2006

No. 04-4407

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JACQUELINE M. SCOTT, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
FIRSTMERIT CORPORATION, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )

Before: NELSON, DAUGHTREY and SUTTON, Circuit Judges.

SUTTON, Circuit Judge. The district court in this case granted FirstMerit Corporation’s

motion for summary judgment, rejecting Jacqueline Scott’s federal and state claims for disability

and race discrimination arising from FirstMerit’s decision to discharge her for falsification of bank

records. Because Scott has failed to establish a cognizable claim that FirstMerit’s proffered

nondiscriminatory justification for her discharge was a pretext for discrimination, we affirm.

I.

FirstMerit provides banking and other financial services and is based in Akron, Ohio. The

company operates 158 banking offices in Ohio and Pennsylvania.
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In 1974, Jacqueline Scott, an African-American, began working for FirstMerit as a file clerk.

In 1997, she became a customer service representative, and in 1998 she accepted a position as a

personal banking representative. D. Ct. Op. at 2.

In May 2000, Scott was forced to take a medical leave of absence following a workplace

injury to her right wrist. The injury developed into a “permanent, painful condition” known as

reflex sympathy dystrophy, which “prevent[ed] Scott from lifting objects as light as a coffee mug

with her right hand.” Scott Br. at 4. When she eventually returned to work, the injury prevented

her from working a full eight-hour day. Attempting to accommodate this restriction, FirstMerit

reassigned her to a customer service position, one that allowed her to work reduced hours. See D.

Ct. Op. at 2. In the new position, she received the same pay and benefits as she had received before

the injury. At some point after she returned to work, Scott claims that the once-amicable

relationship between her and her supervisor, Mark Cicchinelli, changed. In particular, he

“constantly hounded” her to get a medical release that would allow her to return to working an eight-

hour day. JA 457.

On Friday, March 22, 2002, a customer asked Scott to remove an erroneous $34 charge from

his account, requiring Scott to prepare an affidavit to correct the bank’s admitted mistake. While

typing the affidavit and simultaneously speaking with her co-worker, Cindy Smith, Scott claims that

she “unintentional[ly]” and “unconscious[ly]” entered “Cindy Smith” in a space on the affidavit

marked “originated by.” JA 456; D. Ct. Op. at 3. The customer signed the document, another

employee notarized the customer’s signature and Scott submitted the document for processing. D.

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Ct. Op. at 3. Because Scott used a P.O. Box in completing the document rather than a street address,

as required for this kind of transaction, the electronic banking department of FirstMerit did not

process the document. And because Smith’s name appeared on the document as its originator, the

department contacted her regarding the document. Realizing that she had not prepared the

document, Smith reported the incident to Cicchinelli, who referred the matter to FirstMerit’s security

department for an internal investigation.

FirstMerit’s security officer, Lane Orem, conducted the investigation, during which he

reviewed a written statement from the notary about the incident and separately interviewed Smith

and Scott. During Scott’s interview, Orem questioned her about her relationship with the customer

whose erroneous charge had prompted her to prepare the affidavit. Although Scott answered that

she did “not really” know the customer, she revealed that she knew the street on which the customer

lived, even though the false affidavit at issue did not list that address (as required) but instead listed

a P.O. Box. JA 491. Orem did not interview the customer. Orem concluded that Scott knew the

customer “better than she was admitting” and that the use of Cindy Smith’s name was a

misrepresentation because Scott was asked in the affidavit to enter her own name. JA 377 (“How

do you type your wrong name? . . . How do you type somebody else’s name on a form?”); JA

490–91 (“When I asked if [Scott] knew [the customer], [Scott] stated ‘not really,’ but when I asked

her where [the customer] lived, [Scott] stated he lived on Bacon St. in Akron. It was clear at that

point that [Scott] knew [the customer] better than she was admitting [ ] because the affidavit showed

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a PO Box for the address.”). On April 12, 2002, at the conclusion of Scott’s interview, Orem

suspended her pending a final decision by FirstMerit’s performance review committee.

On April 16, 2002, the performance review committee met to hear Orem’s findings and

recommendation. Comprised of Michael Williams, Joanne Post, Michael Hormula and Earlene

Balestrino, the committee followed Orem’s recommendation and unanimously decided to discharge

Scott for “falsification of bank records.” JA 492 (performance review committee log).

On July 15, 2003, Scott filed this lawsuit in Ohio state court, alleging disability

discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,

and race discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. She also claimed that

the bank had violated analogous state laws, see Ohio Rev. Code Ann. § 4112.02, as well as a state

law against wrongful discharge in violation of public policy. FirstMerit removed the case to federal

court and moved for summary judgment. The district court granted FirstMerit’s motion, concluding

that Scott had failed to establish a prima facie case of federal or state discrimination based on

disability or race, D. Ct. Op. at 7–17, and alternatively concluding that Scott had failed to show that

FirstMerit’s nondiscriminatory reason for discharging her was a pretext for discrimination, id. at

11–14, 17. The district court also granted summary judgment to FirstMerit on Scott’s state-law

wrongful-discharge claim. Id. at 17–18.

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II.

On appeal, Scott challenges the district court’s decision with respect to the federal and state

race and disability discrimination claims but does not challenge the dismissal of her state-law

wrongful-discharge claim. We give fresh review to a district court’s summary-judgment decision

and apply the same Rule 56 standard that the district court applied. Wexler v. White’s Fine

Furniture, Inc., 317 F.3d 564, 569 (6th Cir. 2003).

A.

Under Title VII, “[a] plaintiff may establish a prima facie case of discrimination either by

presenting direct evidence of intentional discrimination by the defendant or by showing the

existence of circumstantial evidence which creates an inference of discrimination.” Talley v. Bravo

Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995) (citations omitted). Scott concedes that she

has not presented direct evidence of discrimination, see Scott Br. at 15, meaning that her claim must

be analyzed under the familiar burden-shifting framework used to establish indirect evidence of

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under that

standard, Scott first must establish a prima facie case of discrimination, which requires her to show

that “(1) she was a member of a protected class; (2) she was discharged; (3) she was qualified for

the position;” and (4) “that for the same or similar conduct [she] was treated differently than

similarly-situated” employees outside the protected class. Mitchell v. Toledo Hosp., 964 F.2d 577,

582–83 (6th Cir. 1992). If she can establish her prima facie case, the burden shifts to FirstMerit to

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Scott v. FirstMerit Corp.

offer a legitimate nondiscriminatory reason for Scott’s discharge. Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 254–56 (1981).

In the event FirstMerit provides a nondiscriminatory reason for the discharge, the burden

shifts back to Scott to prove “by a preponderance of the evidence” that FirstMerit’s proffered reason

was merely a pretext for illegal discrimination. Id. at 252–53. To establish “a submissible case on

the credibility of [FirstMerit’s] explanation,” Scott must demonstrate “(1) that the proffered reason[]

had no basis in fact, (2) that the proffered reason[] did not actually motivate [her] discharge, or (3)

that [it was] insufficient to motivate discharge.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d

1078, 1084 (6th Cir. 1994) (internal quotation and emphasis omitted). Because a jury “may not

reject an employer’s explanation . . . unless there is a sufficient basis in the evidence for doing so,”

id. at 1083; Noble v. Brinker Int’l, Inc., 391 F.3d 715, 724 (6th Cir. 2004), Scott must produce

evidence from which a reasonable jury could find pretext in order to overcome FirstMerit’s motion

for summary judgment.

We have some doubt that Scott has established a prima facie case of discrimination under

Title VII, primarily because she does not appear to have shown that she “was treated differently than

similarly-situated” employees outside the protected class. Id.; see D. Ct. Op. at 7–11. But we need

not resolve that point because she has not created a triable issue of fact over whether FirstMerit’s

explanation for her discharge was a pretext for discrimination.

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As an initial matter, Scott cannot tenably rely on the first ground for establishing

pretext—that the “proffered reason[]” for the discharge “had no basis in fact.” Manzer, 29 F.3d at

1084. “[A]s long as an employer has an honest belief in its proffered nondiscriminatory reason for

discharging an employee, the employee cannot establish that the reason was pretextual simply

because it is ultimately shown to be incorrect.” Majewski v. Automatic Data Processing, Inc., 274

F.3d 1106, 1117 (6th Cir. 2001). “In order to determine whether [FirstMerit] had an ‘honest belief’

in the proffered basis for the [discharge], this Court looks to whether [FirstMerit] can establish its

‘reasonable reliance’ on the particularized facts that were before it at the time the decision was

made.” Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). And while “the key inquiry

is whether [FirstMerit] made a reasonably informed and considered decision,” an employer’s

investigation is not required to leave “no stone unturned.” Smith v. Chrysler Corp., 155 F.3d 799,

807 (6th Cir. 1998).

Consistent with these decisions, FirstMerit has pointed to “particularized facts that were

before it at the time the decision was made” and that legitimately could support its stated reason for

discharging Scott. Majewski, 274 F.3d at 1117. Most particularly, FirstMerit relied on Scott’s

admission that she entered another employee’s name as her own in completing the affidavit. JA 54,

56 (Scott Dep.); JA 490 (investigation report stating: “When I showed [Scott] the affidavit . . . [she]

admitted to typing the document and typing Cindy[] [Smith’s] name on it.”). Performance review

committee member Earlene Balestrino stated in her affidavit that this fact was the basis of the

committee’s decision to discharge Scott. JA 45 (“The only reason [for the discharge] was that

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[Scott] prepared the affidavit identifying another employee as the originator of the affidavit when

in fact she was not.”). And investigator Orem’s report and testimony indicated that he concluded

Scott committed a misrepresentation when she entered Smith’s name on the affidavit instead of her

own. See JA 377 (“My opinion is she typed someone else’s name on a bank document. She

misrepresented that document, period.”); JA 490–91 (Orem investigation report).

Seeking to counter this conclusion, Scott attacks the adequacy of Orem’s investigation,

claiming (1) that Orem should have interviewed the customer whose account was at issue because

it would have shown that she was attempting to correct another employee’s error and that she did

not have an inappropriate relationship with the customer under bank policy, Scott Br. at 20, and (2)

that Orem should have “asked about Scott’s job duties[,] her 28-year history with the company” and

her “reputation for honesty,” id. at 24. The absence of an interview with the customer does not

advance Scott’s claim. The bank never acted upon the assumption that Scott was attempting to

correct her own mistake in preparing the affidavit. And it is doubtful that the customer could have

shown that Scott did not know him because he in fact filed an affidavit in this case, in which he

never states that he did not know Scott or did not know Scott well. See JA 266–67. Scott also offers

no explanation why further information about her job duties, job history and reputation would have

changed matters. The dispositive fact, according to the bank, was that she admitted to entering

another person’s name as the originator of the affidavit. In the words of the district court, “the law

does not require that the investigation be perfect, only that an honest belief be held for the action.”

D. Ct. Op. at 13.

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Nor does Nemet v. First Nat’l Bank of Ohio, No. 98-4076, 1999 U.S. App. LEXIS 31979 (6th

Cir. Nov. 22, 1999), aid Scott in establishing that Orem’s investigation should have included an

interview of the customer. In Nemet, an interview of the customer would have revealed that the

discharged employee could not have been responsible for the act that led to his discharge. See id.

at *16 (investigation would have revealed that the plaintiff could not have erased the security tape

as alleged by the employer at the time of discharge). Scott makes no such claim here and

accordingly has not demonstrated how this alleged gap in the investigation rendered the performance

review committee’s decision to discharge her any less “reasonably informed and considered.”

Smith, 155 F.3d at 807.

Scott also argues that the “‘honest belief’ rule is [ ] not available when an employer tosses

out a number of reasons to support an employee’s termination in hopes that one will stick” and that

these changing reasons presented a “moving target.” Scott. Br. at 24. As the district court made

clear, however, FirstMerit’s reason for discharging Scott has uniformly been that she was guilty of

falsifying a bank document. That various communications from FirstMerit to Scott called the

offense by slightly different names or that Orem noted in his deposition and report that he was

troubled by Scott’s lack of candor about her relationship with the customer does not support Scott’s

assertion that the underlying justification for the dismissal was a “moving target.” In this respect,

we again agree with the district court (D. Ct. Op. at 14) that “[t]here is no evidence that [FirstMerit]

has offered changing reasons for [Scott’s] termination”: From beginning to end, the bank’s

overriding concern was Scott’s use of a name other than her own in completing the affidavit.

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Scott next invokes the last two Manzer factors, claiming that the unreasonableness of the

discharge decision, see Scott Reply Br. at 1 (“In order to fire Jacqueline Scott, FirstMerit had to

make a mountain out of a molehill.”), creates a triable issue of fact over whether the “proffered

reason” for the discharge “actually motivate[d]” it or was “insufficient to motivate” it, Manzer, 29

F.3d at 1084 (emphasis omitted). In support of this argument, she cites Wexler, 317 F.3d at 576,

which notes that “[a]n employer’s business judgment . . . is not an absolute defense to unlawful

discrimination” and that “the reasonableness of an employer’s decision may be considered to the

extent that such an inquiry sheds light on whether the employer’s proffered reason for the

[discharge] was its actual motivation.”

Viewed in isolation, FirstMerit’s decision to discharge Scott seems unmercifully

draconian—given Scott’s lengthy tenure with FirstMerit, the small amount of money involved and

the fact that it remains unclear how she could have benefitted financially from her actions. But Scott

did not stand alone in this respect. So far as the record shows, FirstMerit was equally unforgiving

with many other employees when it came to falsification charges. And the fact remains that Scott

worked for a bank, which has ample reason for requiring that its employees ensure the accuracy of

bank documents for which they are responsible. FirstMerit has several policies aimed at “preserving

the accuracy and integrity of its bank documents,” JA 46 (Balestrino affidavit), 493–98, and its

commitment to these policies is evidenced by the dismissal of 24 employees, including Scott, for

committing offenses involving falsification during 2001 and 2002. See JA 347–48 (summary of

dismissals for falsification). Several of these dismissed employees, we should add, claimed that the

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falsification for which they were discharged stemmed from a mistake or an equivalently minor

transgression. See JA 80–83 (employee discharged for falsification of a mileage-reimbursement

claim (for 36 miles) where the employee claimed that she “didn’t worry about changing the

[incorrect mileage entry] because [she] did [make the trip] just not on the day the sheet said”); JA

92 (employee discharged despite her claim that the falsification was “only . . . a mistake”); JA 99

(employee discharged for “forcing” her money drawer to balance when it was short $8 even though

she believed it was actually $2 over); JA 347 (employee discharged for “contribut[ing] $141 of her

own money to cover overpayment to customer” at her “supervisor’s direction”); Id. (employee

discharged for “forcing” her money drawer to balance when the total amount at issue was

approximately $25).

Nor, as the above actions suggest, can Scott show that “other employees, particularly

employees not in the protected class, were not fired even though they engaged in substantially

identical conduct to that which [FirstMerit] contends motivated its discharge of [Scott].” Manzer,

29 F.3d at 1084. While Scott points to two employees who were not fired after they “failed to

adequately check a signature card, thereby allowing an imposter access to a dead customer’s safe

deposit box,” Scott Br. at 19, she has not alleged (or shown) that they made a misrepresentation on

an internal bank document. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th

Cir. 1998) (holding that an “employee with whom the plaintiff seeks to compare . . . herself must

be similar in all of the relevant aspects”) (internal quotation omitted). And while Scott points to the

employee who notarized the customer’s signature on the affidavit, “did not find Scott’s error” and

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“was not terminated for it,” Scott Reply Br. at 6, she has not shown that the notary’s job consisted

of doing anything more than notarizing the customer’s signature, as opposed to notarizing the

accuracy of anything else on the document. For like reasons, Scott has not shown that the bank’s

treatment of employees who failed to complete their time cards accurately was “similar in all of the

relevant aspects,” Ercegovich, 154 F.3d at 352, primarily because it is one thing for a bank to ensure

accuracy about records documenting money flowing into and out of the bank and another to ensure

the accuracy of its employees’ time cards.

Against this backdrop, we cannot say that Title VII gives Scott a right to take this claim to

a jury to determine whether the bank’s “proffered reason[]” for the discharge “actually motivate[d]”

it or was “insufficient to motivate” it. Manzer, 29 F.3d at 1084. Scott worked in an industry where

the need for accuracy in its official documents is self-evident, see, e.g., JA 56 (deposition testimony

in which Scott admits that it is “vital that the information [ ] contained in [the] documents [she

completed] be absolutely correct”), and worked for a bank that discharged a number of employees

during 2001 and 2002 who were outside the two protected classes and who were guilty of similar

falsification offenses. Accordingly, the district court correctly rejected this claim as a matter of law.

B.

As with her Title VII claim, Scott admits that there is no “direct evidence” of discrimination

supporting her ADA claim. Scott Br. at 15. And as with a Title VII claim, an ADA claim seeking

to establish discrimination by indirect evidence is analyzed according to the McDonnell Douglas

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burden-shifting framework. Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 660 (6th Cir. 1999).

To establish a prima facie case of disability discrimination, Scott bears the burden of demonstrating

that: “(1) [s]he is disabled; (2) [s]he [was] otherwise qualified for the position; (3) [s]he suffered

an adverse employment decision; (4) [FirstMerit] knew or had reason to know of h[er] disability;

and (5) after [her discharge], the position remained open, or [she] was replaced by a member outside

the protected class.” Hopkins, 196 F.3d at 660; see also Monette v. Elec. Data Sys. Corp., 90 F.3d

1173, 1186 n.11 (6th Cir. 1996) (listing these elements and indicating that the “precise

characterization of the fifth prong of the test will sometimes vary depending upon the factual

scenario confronting the court”).

It remains unclear, as an initial matter, whether Scott has established a prima facie case of

disability discrimination, most notably because she has not demonstrated that any of the

decisionmakers knew that she was disabled. It is undisputed that neither the investigator (Orem) nor

the four members of the performance review committee (Williams, Post, Hormula and Balestrino)

knew of her disability. The only person who did, Cicchinelli, merely recommended Scott for an

internal investigation, had no other involvement in the investigation and did not participate in the

performance review committee’s decision to discharge Scott.

As with Scott’s Title VII claim, however, we need not rest our resolution of the appeal on

this ground. Even if she had established a prima facie case, Scott has not met her burden of

establishing that FirstMerit’s proffered nondiscriminatory justification was a pretext for

discrimination for the reasons stated above.

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C.

On appeal, neither party argues that the state-law discrimination claims should be analyzed

differently than their federal-law counterparts. Nor can we identify any reason why the state-law

claims should be treated differently, and accordingly we will resolve them in the same way under

the same framework. See Williams v. Ford Motor Co., 187 F.3d 533, 538 (6th Cir. 1999) (“The

Ohio courts have held that the evidentiary standards and burdens of proof applicable to a claimed

violation of Title VII . . . are likewise applicable in determining whether a violation of Ohio Rev.

Code § 4112 has occurred. Thus, the federal case law governing Title VII actions is generally

applicable to cases involving alleged violations of Chapter 4112.”); Brenneman v. MedCentral

Health Sys., 366 F.3d 412, 418 (6th Cir. 2004) (“Because neither party has argued that an action for

handicap discrimination under Ohio law entails a different legal analysis than that for disability

discrimination under the ADA, and because Ohio case law tends to suggest that it entails the same

legal analysis as that under the ADA, we will analyze plaintiff’s state and federal discrimination

claims under Ohio Revised Code § 4112 and the ADA, respectively, solely under the ADA.”).

III.

For these reasons, we affirm.

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