RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0124p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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TOM SEEGER,
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Plaintiff-Appellant,
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No. 10-6148
v.
,
>
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CINCINNATI BELL TELEPHONE COMPANY,
Defendant-Appellee. -
LLC,
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N
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 08-00207—David L. Bunning, District Judge.
Argued: January 11, 2012
Decided and Filed: May 8, 2012
Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*
_________________
COUNSEL
ARGUED: Sheila M. Smith, FREKING & BETZ, LLC, Cincinnati, Ohio, for
Appellant. Nathaniel Lampley, Jr., VORYS, SATER, SEYMOUR AND PEASE LLP,
Cincinnati, Ohio, for Appellee. ON BRIEF: Sheila M. Smith, FREKING & BETZ,
LLC, Cincinnati, Ohio, for Appellant. Nathaniel Lampley, Jr., VORYS, SATER,
SEYMOUR AND PEASE LLP, Cincinnati, Ohio, for Appellee.
GRIFFIN, J., delivered the opinion of the court, in which SILER, J., joined.
TARNOW, D. J. (pp. 20–24), delivered a separate dissenting opinion.
*
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Plaintiff Tom Seeger appeals the district court’s order
granting summary judgment in favor of defendant Cincinnati Bell Telephone Co., LLC
(“CBT”), and dismissing his claim that CBT violated the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601-2654, when it terminated his employment on the ground
of disability fraud. Seeger took FMLA leave and concurrent paid leave under CBT’s
own disability plan to treat and recover from a herniated disc in his back. CBT
terminated him for disability fraud after Seeger’s co-workers saw him at the Oktoberfest
in downtown Cincinnati during his FMLA leave period.
The district court held that, although Seeger established a prima facie case of
retaliatory discharge, CBT’s unrebutted honest belief that Seeger committed disability
fraud shielded it from liability. We agree and affirm.
I.
Tom Seeger was employed as a network technician by CBT from September
1979 through October 2007. He was a member of a collective bargaining unit
represented by the Communications Workers of America (the “Union”). CBT and the
Union entered into a collective bargaining agreement (“CBA”) that governed the terms
and conditions of employment for CBT’s network technicians, including Seeger. Under
the CBA, CBT employees who were on FMLA leave were also eligible to receive paid
disability leave pursuant to CBT’s Sickness and Accident Disability Plan. The two
benefits were separate and distinct – an employee who qualified for FMLA leave might
not be eligible for paid disability leave, and vice versa. CBT’s paid disability plan
imposed two additional requirements on employees beyond those in the FMLA: (1) the
employee must allow CBT to have access to his or her medical records for review by
CBT, and (2) the employee was required to work in a modified or light-duty position
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 3
tailored to meet the individual’s needs and medical restrictions, if the employee was
medically able to do so.
Seeger’s relevant medical issues began on August 20, 2007, when he experienced
pain and numbness in his left leg. He went to the emergency room, where he was
prescribed pain medications. Three days later, he sought follow-up care at the office of
his primary-care physician, Dr. Michael Grainger. One of Dr. Grainger’s colleagues
administered a steroid injection and a muscle relaxer. From August 20 through August
26, Seeger was on an approved FMLA leave. Seeger returned to work on September 4,
but his leg pain persisted. The following day, he was seen again by a physician at Dr.
Grainger’s office. An MRI confirmed that Seeger suffered from a herniated lumbar disc
at L4-5 and L5-S1. Seeger was referred to a neurosurgeon at the Mayfield Clinic for
surgical and pain management consultations.
On September 5, Seeger commenced a leave of absence, which was approved as
both FMLA leave and paid disability leave by Theresa Greenwald, a registered nurse and
the manager of CBT’s Medical Department. Greenwald had over thirty-five years of
experience, and she was certified in rehabilitation nursing and case management. In her
position with CBT, Greenwald made the ultimate determinations regarding whether to
approve or disapprove medical leave for CBT employees, and whether such leave
qualified as FMLA or paid disability leave.
In the initial intake information that Seeger provided to the Mayfield Clinic, he
reported left-leg numbness and intermittent lower-back and hip pain. He rated his pain
level as 10 on a scale of 0 to 10 (with 10 being the worst), but stated that the pain
improved when he was lying down. His neurosurgeon recommended physical therapy
and an epidural steroid injection consultation with another specialist.
Seeger started a course of physical therapy, which consisted of three therapy
sessions per week for four weeks, spanning from September 17 through October 12. At
his first physical therapy session on September 17, Seeger reported that his level of pain
had decreased, but he indicated that he could only sit or stand for thirty-minute intervals.
On the same day, Greenwald wrote to Dr. Grainger, informing him that “[s]ince no
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 4
surgery is imminent and [Seeger] has been off work almost three weeks receiving non-
surgical care, we could provide part-time sedentary telephone work for Mr. Seeger.
Please consider this temporary restricted duty.” In her correspondence, Greenwald
further explained that employees on restricted duty are not required to work full time and
such work may involve as few as two hours a day.
Dr. Grainger examined Seeger on September 19, 2007. Seeger complained of
pain in his lower back and numbness in his left leg. Dr. Grainger observed that Seeger
had difficulty changing positions, getting in and out of a chair, and walking. Based upon
his symptoms, Grainger estimated that Seeger’s pain level was at 7 or 8 on the 1 to 10
scale. Dr. Grainger diagnosed Seeger with left sciatica and lumbar radiculopathy caused
by Seeger’s herniated disc. According to Dr. Grainger, the pain from this condition
could vary considerably during a twenty-four hour period, even after an epidural steroid
injection. The treatment goal for Seeger was increased activity. Dr. Grainger instructed
Seeger to continue physical therapy, engage in tolerable physical activity, and confer
with the neurosurgeons at the Mayfield Clinic. In his notes recording this office visit,
Dr. Grainger wrote “no work” for Seeger. The next day, in response to Greenwald’s
earlier inquiry, Dr. Grainger’s physician’s assistant left a voicemail message for
Greenwald indicating that Seeger was unable to perform any restricted work. Seeger
therefore continued to receive paid leave and was not required to perform light-duty
work.
Four days later, on September 23, Seeger and his wife Rose attended the
Oktoberfest in downtown Cincinnati for approximately ninety minutes, during which
time Seeger admittedly walked a total of ten blocks to and from the festival and
consumed one or two beers. There, they had separate chance encounters with several
co-workers. They chatted with Michael Caplinger for fifteen minutes. Caplinger only
witnessed Seeger walking a few steps in the opposite direction after their conversation
ended. Glen Adkins, a CBT transportation engineer, also saw Seeger at the Oktoberfest
– first while Seeger was talking to Caplinger and later when Seeger was walking,
seemingly unimpaired, for approximately fifty to seventy-five feet through the crowd.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 5
Two other CBT employees – Larry Curless and James Schulten – also saw Seeger at
Oktoberfest. Curless noted that Seeger “appeared to be in a lot of pain” because his
steps off the curb were very labored. Seeger told Schulten that his back was bothering
him so he had to go home.1
Adkins was aware that Seeger was on disability leave and reported his sighting
of Seeger to Tracy Wilson, CBT’s Human Resources Manager.2 Wilson instructed
Adkins to send his observations in an e-mail. Adkins sent the e-mail to Wilson on
September 25, and Wilson eventually forwarded it to his supervisor, Michelle Simpson,
Director of Employee Relations and Recruiting.
On September 26, Greenwald called Seeger to discuss his health status. Seeger
told her that he still suffered from shooting pain and altered sensation in his left leg, and
that he had good and bad days. Seeger advised Greenwald that he had been to five
physical therapy sessions and had scheduled a pain-management consultation with one
of the physicians at the Mayfield Clinic. The next day, at his Mayfield Clinic
appointment, Seeger complained of numbness radiating down his left leg and difficulty
walking. He received the first of two epidural steroid injections.
On October 3, Seeger saw Dr. Grainger again and reported that his pain and
range of motion had improved following the injection. Seeger told Dr. Grainger that he
wanted to return to work, but according to Seeger, Dr. Grainger would not allow it. On
October 4, Seeger called Greenwald and updated her as to his medical progress.
Greenwald did not bring up the topic of light-duty work with Seeger during either this
conversation or the previous one on September 26. On October 11, Seeger had a second
1
Although Seeger proffered the affidavits of Curless and Schulten in his response to CBT’s
motion for summary judgment filed in this case, he never mentioned these two witnesses to CBT during
the course of its disability fraud investigation.
2
Adkins and the Seegers did not have a good working relationship. In January 2007, Seeger’s
wife Rose, also an employee of CBT, filed a grievance against Adkins alleging that he was doing tasks
reserved only for union members. In June 2007, Seeger complained to his supervisors that Adkins was
creating a hostile work environment for Seeger and Rose.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 6
injection, followed by a physical therapy session the next day. On October 15,3 Seeger
had another appointment with Dr. Grainger and reported that he had been asymptomatic
for two days. Dr. Grainger authorized his return to work, and Seeger resumed his full-
time position as a CBT network technician on October 16, 2007.
In the meantime, upon hearing of Seeger’s attendance at Oktoberfest, Simpson
instructed Wilson to investigate Adkins’ report. Wilson interviewed Caplinger and
forwarded his notes of the meeting to Simpson. CBT obtained sworn statements from
Caplinger and Adkins regarding their contact with Seeger at Oktoberfest. In their
affidavits, Caplinger and Adkins stated that they saw Seeger drinking a beer and
“walking unassisted and seemingly unimpaired through the crowded festival.” Adkins
said that Seeger “did not appear to be impaired or disabled.”
Simpson independently reviewed Seeger’s medical records, disability file, and
employment history. She consulted with Greenwald about Seeger’s medical issues, but
neither Simpson nor Greenwald directly contacted Seeger’s treating physicians to
discuss his medical condition. Based upon perceived inconsistencies between Seeger’s
reported medical condition and his behavior at Oktoberfest, Simpson decided to suspend
Seeger’s employment and instructed Wilson to schedule a suspension meeting, which
was held on October 31, 2007.
At the meeting, Wilson questioned Seeger about the details of his back injury and
why he was able to attend Oktoberfest, yet he was unable to perform light-duty work
pursuant to CBT’s paid-leave policy. Seeger explained his treatment regimen to Wilson
and told him that it was Dr. Grainger’s decision that he should not perform any light-
duty work. Because Seeger did not know what the light-duty assignment might entail,
he did not question the doctor’s assessment. He defended his actions and denied
committing disability fraud. Nonetheless, at the conclusion of the meeting, Wilson
suspended Seeger pending the completion of CBT’s investigation and invited Seeger to
3
There is some dispute as to whether Seeger saw Dr. Grainger on October 12 or October 15, or
both.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 7
submit any information that might be relevant to the inquiry. Seeger thereafter provided
a letter dated October 31, 2007, from Dr. Grainger, which stated:
Walking for one and a half hours at one’s own pace doesn’t equal
working for an eight hour day nor is it reasonable to assume that he could
perform even limited duties for an eight hour day. Most patients with
herniated discs are most comfortable standing and/or walking but [are]
unable to sit or change positions.
In addition, Seeger provided his own written statement in which he explained that
I have tried to do everything in my power to satisfy the documented
needs of [CBT’s] medical [department] and so has my doctor. As far as
the time in question I saw my doctor on [October] 19th and had 2 therapy
sessions between that day and the day I went to Octoberfest. It is true I
went to Octoberfest for about an hour, to get out of the house and walk
around. I was in pain the whole time, but did get some relief when I took
short walks. My doctor specifically told me that walking was good for
my condition and I tried to take short walks. He specified no working,
lifting or even seated work, since being seated put increased pressure on
my low back and caused me additional pain. I mostly stood or laid on
the floor through my whole disability. On two [occasions] I discussed
with my doctor about the option of returning to work due to the
perceived pressure of [CBT’s] medical [department]. He said absolutely
not. When I had my steroid injection on 8/23 I came right back to work.
A week later when the pain returned the doctor said I could not return to
work . . . . I still have pain and do daily physical therapy at home. I have
been under my doctor[’s] care since day one. No one knows what kind
of pain I am in but me, not a nurse who has ever examined me nor two
people on the street who [only] saw me for a few minutes.
Simpson considered the letters from Seeger and Dr. Grainger, the written
statements of Adkins and Caplinger, additional information submitted by the Union, and
Seeger’s medical records. Based upon the information compiled in the investigation and
after further review of Seeger’s disability file with Greenwald, Simpson concluded that
Seeger had “over reported” his symptoms in order to avoid the part-time light-duty work
called for in the paid-leave policy. In her opinion,
Tom Seeger had reported himself in excruciating pain and reported
difficulty changing positions and ambulating to the extent where, when
we inquired about him being able to do a light duty-type position, the
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 8
doctor responded, “No work.” Yet, he was seen by two independent
witnesses walking around Oktoberfest where it’s a crowded venue, and
not easily accessed. I thought that . . . was fraudulent on his part. To
report excruciating pain and difficulty walking, yet attending Oktoberfest
[only days later].
On November 8, 2007, Simpson terminated Seeger’s employment on the ground
of disability fraud, a violation of CBT’s code of conduct. The termination was effective
October 31, 2007, the date of Seeger’s suspension.
Ultimately, Greenwald approved Seeger for paid disability leave from
September 5 until September 24, including the additional date of September 27, when
Seeger received his first steroid injection. She approved Seeger for unpaid FMLA leave
from September 24 until October 16, 2007.
On November 5, 2008, Seeger filed the present action against CBT, alleging age
discrimination contrary to federal and Kentucky law, and a violation of his rights under
the FMLA.4 In February 2010, CBT filed a motion for summary judgment pursuant to
Fed. R. Civ. P. 56(c). Although Seeger opposed the motion with respect to his FMLA
claims, he did not challenge CBT’s motion as it pertained to his age discrimination
claims. Following oral argument, the district court granted summary judgment in favor
of CBT on all counts.
In its written decision addressing Seeger’s FMLA claims, the district court found
that because plaintiff “ma[de] no distinction between his retaliation and interference
claims, . . . the Court will address both claims under the retaliation theory.” Analyzing
Seeger’s claim under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), the district court held that the close temporal proximity
between Seeger’s FMLA leave and his termination provided a sufficient causal
4
On the day Seeger’s employment was terminated, his Union filed a grievance contesting his
discharge and the matter was submitted to arbitration pursuant to the terms of the CBA. On July 15, 2010,
after a hearing on the matter, the arbitrator issued a written opinion finding that Seeger was terminated
without just cause. The arbitrator denied reinstatement because Seeger had accepted a retirement package,
but awarded him back pay for a six-month period between October 31, 2007, and April 30, 2008.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 9
connection to establish a prima facie case of retaliatory discharge.5 However, the court
further held that CBT articulated a legitimate, nondiscriminatory reason for terminating
Seeger – disability fraud – and Seeger, in turn, failed to show that this reason was
pretextual in nature. Specifically, the district court held that Seeger failed to refute
CBT’s evidence that it had an “honest belief” in its nondiscriminatory basis for Seeger’s
termination. The court therefore granted CBT’s motion for summary judgment on
Seeger’s FMLA claim and dismissed the case with prejudice. Seeger now timely
appeals.
II.
We review the district court’s grant of summary judgment de novo. Hunter v.
Valley View Local Sch., 579 F.3d 688, 690 (6th Cir. 2009). Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). “In
evaluating summary judgment, we must view all the facts and the inferences drawn from
it in the light most favorable to the nonmoving party.” Daugherty, 544 F.3d at 702.
“The ‘mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original). Summary judgment is
appropriate “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Id. (citation and internal quotation marks omitted).
The FMLA entitles employees to an annual total of twelve weeks of leave for a
number of reasons including, inter alia, because of a “‘serious health condition that
makes the employee unable to perform the functions of the position of such employee.’”
5
CBT did not dispute the other two necessary elements of a prima facie case, i.e., that Seeger
engaged in a statutorily protected activity and that he suffered an adverse employment action. See
generally Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008). CBT did, however, argue
that Seeger lacked any evidence of retaliatory intent.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 10
Arban v. West Publ’g Corp., 345 F.3d 390, 400 (6th Cir. 2003) (quoting 29 U.S.C.
§ 2612(a)(1)(D)). Upon returning from FMLA leave, an employee must be reinstated
to his position or an equivalent position in terms of pay, benefits, and other conditions
of employment. 29 U.S.C. § 2614(a)(1).
The FMLA does not preclude employers from offering employees paid medical-
leave benefits in tandem with FMLA unpaid leave; in fact, an employer may require an
eligible employee to substitute accrued paid leave for unpaid FMLA leave, with such
paid leave to run concurrently with the FMLA leave. Allen v. Butler Cnty. Comm’rs,
331 F. App’x 389, 393 (6th Cir. 2009) (citing 29 C.F.R. § 825.207(a)). “‘If an employee
does not comply with the additional requirements in an employer’s paid leave policy, the
employee is not entitled to substitute accrued paid leave, but the employee remains
entitled to take unpaid FMLA leave.’” Id. (quoting 29 C.F.R. § 825.207(a)).
The FMLA makes it unlawful for any employer “to interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided [by the Act],”
29 U.S.C. § 2615(a)(1), or to “discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by [the Act].” Id. at § 2615(a)(2).
Consistent with these proscriptions, “[e]mployers may not discriminate against
employees on FMLA leave in the administration of their paid leave policies.” 29 C.F.R.
§ 825.207(a). Employers who violate the FMLA are liable to the employee for damages
and such equitable relief as may be appropriate. 29 U.S.C. § 2617(a)(1).
As a preliminary matter, Seeger contends that the district court erred when it
found the FMLA retaliation and interference claims alleged in his complaint to be
indistinguishable and thus analyzed them solely as an FMLA retaliation claim under
§ 2615(a)(2). We disagree.
Our court has recognized two discrete theories of recovery under the FMLA:
(1) the so-called “interference” or “entitlement” theory arising from § 2615(a)(1), and
(2) the “retaliation” or “discrimination” theory arising from § 2615(a)(2). Hunter,
579 F.3d at 691; Arban, 345 F.3d at 400-01. Although we have held that a claim for
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 11
retaliatory discharge is cognizable under either theory,6 the requisite proofs differ. The
interference theory has its roots in the FMLA’s creation of substantive rights, and “[i]f
an employer interferes with the FMLA-created right to medical leave or to reinstatement
following the leave, a violation has occurred,” regardless of the intent of the employer.
Arban, 345 F.3d at 401. The central issue raised by the retaliation theory, on the other
hand, is “whether the employer took the adverse action because of a prohibited reason
or for a legitimate nondiscriminatory reason.” Edgar v. JAC Prods., Inc., 443 F.3d 501,
508 (6th Cir. 2006) (citation and internal quotation marks omitted). In contrast to the
interference theory, “[t]he employer’s motive is relevant because retaliation claims
impose liability on employers that act against employees specifically because those
employees invoked their FMLA rights.” Id.
Generally, “a plaintiff ha[s] not waived a claim based on the interference theory
where the complaint alleged general violations of 29 U.S.C. § 2615 that could apply to
both interference and retaliation claims.” Morris v. Family Dollar Stores of Ohio, Inc.,
320 F. App’x 330, 335 (6th Cir. 2009) (citing Wysong, 503 F.3d at 446). However, the
essence of Seeger’s claim is retaliation, not interference with his substantive FMLA
rights. In analogous circumstances, the Eighth Circuit Court of Appeals has
convincingly rejected the same argument made by Seeger. In Stallings v. Hussmann
Corp., 447 F.3d 1041 (8th Cir. 2006), the employer terminated the plaintiff (Stallings)
for “calling in FMLA [leave] for non-FMLA reasons, fraudulent . . . misuse of the leave
of absence policy, . . . and causing falsification of the company’s records in this regard.”
Id. at 1045. Stallings filed an action alleging, inter alia, both FMLA interference and
retaliation claims, but the district court granted summary judgment in favor of the
employer. Id. On appeal, Stallings argued that the district court improperly consolidated
his FMLA claims and considered them as one for retaliation under § 2615(a)(2). Id. at
1050. The Eighth Circuit disagreed, stating:
6
See Weimer v. Honda of Am. Mfg., Inc., 356 F. App’x 812, 815 (6th Cir. 2009); Bryant v. Dollar
Gen. Corp., 538 F.3d 394, 400-01 (6th Cir. 2008); Wysong v. Dow Chem. Co., 503 F.3d 441, 446-47 &
n.2 (6th Cir. 2007); Arban, 345 F.3d at 403; Chandler v. Specialty Tire of Am. (Tenn.), Inc., 283 F.3d 818,
825 (6th Cir. 2002).
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 12
In the present case, we conclude that the district court did not improperly
analyze Stalling’s FMLA claim as one of retaliation instead of
interference. First, [the defendant corporation] granted every request
Stallings made to take FMLA leave; therefore, Stallings has failed to
establish that [the defendant corporation and the defendant manager]
denied him a benefit to which he was entitled because he received all of
the FMLA leave he requested. . . . Second, neither [defendant] ever
impeded Stallings’ use of FMLA leave. Third, only after Stallings
returned from FMLA leave did [the defendant corporation] question
whether Stallings fraudulently used his FMLA leave and fire Stallings.
Therefore, Stalling’s claim is fundamentally a claim for retaliation and
should be analyzed as such.
Id. at 1051.
We find the reasoning of the Eighth Circuit to be persuasive and applicable to
Seeger’s case. Although Seeger was denied some paid leave, he, like Stallings, received
all of the FMLA leave to which he was entitled. His FMLA leave request was approved
in full by Greenwald, and Seeger returned to work on October 16, the date certified by
Dr. Grainger, at which time he was reinstated by CBT to his former position as a
network technician. He resumed his normal work routine until he was terminated on
November 8, 2007. Consequently, CBT did not shortchange his leave time, deny
reinstatement, or otherwise interfere with his substantive FMLA rights. See Arban, 345
F.3d at 401 (“The issue [under the interference theory] is simply whether the employer
provided its employee the entitlements set forth in the FMLA – for example, a twelve
week leave or reinstatement after taking a medical leave.”) (citation and internal
quotation marks omitted); cf. Culpepper v. BlueCross BlueShield of Tenn., Inc., 321 F.
App’x 491, 496 (6th Cir. 2009) (“[The plaintiff’s] FMLA [interference] claim . . . must
fail. Culpepper received exactly what her doctor ordered – six days of FMLA leave. No
additional leave was authorized by the Certification, and Culpepper has not shown that
the five [unexcused] absences at issue were taken for one of the reasons enumerated in
the FMLA.”). We therefore conclude that the district court did not err in confining its
analysis of Seeger’s FMLA claim to the retaliation theory of § 2615(a)(2).
Where, as here, Seeger sets forth an FMLA claim based on circumstantial
evidence alleging a single motive for discrimination, it is evaluated under the familiar
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 13
McDonnell Douglas burden-shifting framework. Donald v. Sybra, Inc., 667 F.3d 757,
762 (6th Cir. 2012); Hunter, 579 F.3d at 692 n.2. To establish a prima facie case of
retaliation under the FMLA, Seeger must show that: (1) he was engaged in a statutorily
protected activity; (2) CBT knew that he was exercising his FMLA rights; (3) he
suffered an adverse employment action; and (4) a causal connection existed between the
protected FMLA activity and the adverse employment action. Donald, 667 F.3d at 761.
“The burden of proof at the prima facie stage is minimal; all the plaintiff must do is put
forth some credible evidence that enables the court to deduce that there is a causal
connection between the retaliatory action and the protected activity.” Dixon v. Gonzales,
481 F.3d 324, 333 (6th Cir. 2007).
The parties dispute only the fourth criterion – the causal link connecting Seeger’s
FMLA leave to his termination. We agree with the district court that the nearness in
time between Seeger’s return from FMLA leave and his termination – three weeks after
his reinstatement and less than two months after he first notified CBT of his medical
leave – suffices in these circumstances to meet the low threshold of proof necessary to
establish a prima facie case of retaliatory discharge. Seeger’s termination followed on
the heels of CBT’s investigation, which commenced during Seeger’s FMLA leave.
“[T]his Circuit has embraced the premise that in certain distinct cases where the
temporal proximity between the protected activity and the adverse employment action
is acutely near in time, that close proximity is deemed indirect evidence such as to
permit an inference of retaliation to arise.” DiCarlo v. Potter, 358 F.3d 408, 421 (6th
Cir. 2004); see also Clark v. Walgreen Co., 424 F. App’x 467, 473 (6th Cir. 2011) (per
curiam) (“[T]he court correctly credited the temporal proximity [two months] of [the
plaintiff’s] leave and his firing as sufficient evidence of a causal connection between the
two. Our precedents stand for the principle that timing matters.”); Mickey v. Zeidler
Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (“Where an adverse employment
action occurs very close in time after an employer learns of a protected activity, such
temporal proximity between the events is significant enough to constitute evidence of
a causal connection for the purposes of establishing a prima facie case of retaliation.”);
Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (holding that the three-month
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 14
time lapse between the plaintiff’s request for FMLA leave and her termination on the
day she was scheduled to return to work established a causal connection at the prima
facie stage). Here, Seeger has shown causality by a preponderance of the evidence
through close temporal proximity that is suggestive of retaliation.
We further agree with the district court that at the next step of the McDonnell
Douglas analysis, CBT has articulated a legitimate, nondiscriminatory reason for
discharging Seeger. Bryson, 498 F.3d at 570. “‘Nothing in the FMLA prevents
employers from ensuring that employees who are on leave from work do not abuse their
leave.’” Allen, 331 F. App’x at 395 (emphasis added) (quoting Callison v. City of Phila.,
430 F.3d 117, 121 (3d Cir. 2005)). Fraud and dishonesty constitute lawful, non-
retaliatory bases for termination. See Bentley v. Orange Cnty., Fla., 445 F. App’x 306,
309-10 (11th Cir. 2011) (affirming summary judgment in favor of the defendant
employer where the plaintiff failed to show that the defendant’s legitimate reasons for
firing her – fraud and dishonesty, and violating the leave policy – were more likely
motivated by her use of FMLA leave or lacking credibility); Weimer, 356 F. App’x at
818 (“Honda presented evidence from which the jury could have found that Weimer lied
to company physicians about his activities at home while on leave, as well as about his
medical symptoms. If the jury did find that Weimer made such misrepresentations, they
could then conclude that Honda terminated him for the legitimate reason of violating
Honda’s Standards of Conduct, and not for taking FMLA leave.”); Joostberns v. United
Parcel Servs., Inc., 166 F. App’x 783, 794 (6th Cir. 2006) (“Defendant argues that it
terminated Plaintiff pursuant to its dishonesty policy for mailing packages without
paying for them. This is a legitimate reason to terminate Plaintiff because it is legally
sufficient to justify a judgment for Defendant.”).
Moreover, an employee on FMLA leave may be terminated for violating the
more stringent requirements of a concurrent paid leave policy, as long as that policy is
reasonable and “neither conflicts with nor diminishes the protections guaranteed by the
FMLA.” Allen, 331 F. App’x at 396 (holding that an employer did not violate the
FMLA in terminating its employee who violated a “last chance agreement” by his failure
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 15
to abide by the collective bargaining agreement’s call-in policy and his improper use of
flex time).
CBT rightfully considered workplace disability fraud to be a serious issue.
According to Simpson, CBT previously had terminated other employees for disability
fraud. In policing this workplace problem, CBT’s termination of Seeger because of his
alleged dishonesty in over-reporting his symptoms to avoid the reasonable light-duty
work requirement and continue to receive paid leave constituted a non-retaliatory basis
for his discharge.
Having rebutted the presumption of discrimination raised by Seeger’s prima facie
case, the question remains whether, under the burden-shifting framework of McDonnell
Douglas, Seeger then produced adequate evidence demonstrating that CBT’s proffered
reason was a pretext for discrimination. Bryson, 498 F.3d at 570. “[A] reason cannot
. . . be a pretext for discrimination unless it is shown both that the reason was false, and
that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993) (emphases and quotation marks omitted).
Unlike its role in establishing a prima facie case, “the law in this circuit is clear
that temporal proximity cannot be the sole basis for finding pretext.” Donald, 667 F.3d
at 763. However, “suspicious timing is a strong indicator of pretext when accompanied
by some other, independent evidence.” Bell v. Prefix, Inc., 321 F. App’x 423, 431 (6th
Cir. 2009) (citation and internal quotation marks omitted). 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.
Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). “Whichever method the
plaintiff employs, he always bears the burden of producing sufficient evidence from
which the jury could reasonably reject [the defendant’s] explanation and infer that the
defendant[] intentionally discriminated against him.” Clark, 424 F. App’x at 474
(citation and internal quotation marks omitted). Seeger seeks to demonstrate pretext by
means of the first method – no basis in fact – which is
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 16
essentially an attack on the credibility of the employer’s proffered reason
. . . [and] consists of showing that the employer did not actually have
cause to take adverse action against the employee based on its proffered
reason, and thus, that the proffered reason is pretextual. Where the
employer can demonstrate an honest belief in its proffered reason,
however, the inference of pretext is not warranted. Thus, this Circuit has
adopted the “honest belief rule.” Under [this] rule, an employer’s
proffered reason is considered honestly held where the employer can
establish it reasonably reli[ed] on particularized facts that were before it
at the time the decision was made. Thereafter, the burden is on the
plaintiff to demonstrate that the employer’s belief was not honestly held.
An employee’s bare assertion that the employer’s proffered reason has
no basis in fact is insufficient to call an employer’s honest belief into
question, and fails to create a genuine issue of material fact.
Joostberns, 166 F. App’x at 791 (citations and internal quotation marks omitted).
The ground rules for application of the honest belief rule are clear. A plaintiff
is required to show “more than a dispute over the facts upon which the discharge was
based.” Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001). We have not
required that the employer’s decision-making process under scrutiny “be optimal or that
it left no stone unturned. Rather, the key inquiry is whether the employer made a
reasonably informed and considered decision before taking an adverse employment
action.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Furthermore, “the
falsity of [a] [d]efendant’s reason for terminating [a] plaintiff cannot establish pretext
as a matter of law” under the honest belief rule. Joostberns, 166 F. App’x at 794
(footnote omitted). As long as the employer held an honest belief in its proffered reason,
“the employee cannot establish pretext even if the employer’s reason is ultimately found
to be mistaken, foolish, trivial, or baseless.” Smith, 155 F.3d at 806; see also Majewski
v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001).
An employer’s invocation of the honest belief rule does not automatically shield
it, because the employee must be afforded the opportunity to produce evidence to the
contrary, such as an error on the part of the employer that is “too obvious to be
unintentional.” Smith, 155 F.3d at 807 (citations and internal quotation marks omitted).
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 17
CBT contends, and the district court agreed, that it has shown that it reasonably
relied upon particularized facts in determining that Seeger committed disability fraud
and, therefore, given Seeger’s lack of evidence disputing its honest belief, summary
judgment in its favor was appropriate. Viewing the evidence in the light most favorable
to Seeger, we, too, conclude that CBT made a “reasonably informed and considered
decision” before it terminated him, and Seeger has failed to show that CBT’s decision-
making process was “unworthy of credence.” Id. at 808.
In arguing that CBT’s reason for termination was pretextual, Seeger contends
that CBT willfully ignored medical evidence in its possession that he was responding to
treatment and his pain level had improved well before he attended Oktoberfest. He
maintains that CBT should have gleaned from his medical records available at the time
of the investigation that: (1) he was in pain, although it was lessening due to the steroid
injection, prednisone, and physical therapy sessions; (2) further physical therapy was
expected to provide further relief from pain; (3) consistent with the fluctuating nature
of sciatica described by Dr. Grainger, although his sitting and standing tolerance was
limited, he felt better when walking; (4) his condition had improved by the time he
attended Oktoberfest due to the three intervening physical therapy sessions between
September 17 and September 23; (4) Dr. Grainger specified “no work” on September 19;
(5) he was a good employee, with no disciplinary infractions during his 28-year career
with CBT, and he reported to Dr. Grainger that he was anxious to return to work; and
(6) the long-term goal was to reduce his radiculopathy to zero within four weeks,
allowing him to return to work without restrictions. Seeger also takes issue with the fact
that neither Greenwald nor Simpson sought clarification of his medical condition from
his treating physicians or proposed that he should be evaluated by a different doctor.
However, as we have already noted, an “optimal” investigation – i.e.,
interviewing the employee and some or all of his witnesses – is not a prerequisite to
application of the honest belief rule. Smith, 155 F.3d at 807; McConnell v. Swifty
Transp., Inc., 198 F. App’x 438, 444 (6th Cir. 2006). Further, the fact that Seeger was
a reliable employee with a good employment record is not relevant, “as it proves no
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 18
more than that absent any misconduct on [Seeger’s] part, [CBT] was unlikely to
terminate his employment.” McConnell, 198 F. App’x at 443.
Seeger’s argument and presentation of competing facts is misdirected because
it does not question CBT’s investigatory process. The determinative question is not
whether Seeger actually committed fraud, but whether CBT reasonably and honestly
believed that he did. Weimer, 356 F. App’x at 818.
CBT never disputed that Seeger suffered from a herniated disc and sciatica. Yet
Seeger’s reports of excruciating pain on September 13, his inability to stand for more
than thirty minutes on September 17, his difficulty ambulating on September 19, and Dr.
Grainger’s communication to Greenwald on that very same day that Seeger was unable
to perform sedentary light-duty work, stood in stark contrast to Seeger’s seemingly
unimpaired appearance at Oktoberfest on September 23. While at Oktoberfest, he spoke
to co-workers and drank a beer or two without any indication that his movements were
painful or restricted. Seeger’s ability to walk unaided for ten blocks and remain at the
crowded festival for ninety minutes understandably raised a red flag for CBT, giving it
reason to suspect that Seeger was misrepresenting his medical condition in an attempt
to defraud CBT’s paid-leave policy.
CBT’s investigation was thorough. It interviewed Caplinger and Adkins and
took their formal statements. Simpson, who was unaware of Seeger’s FMLA leave of
absence until Wilson’s report reached her desk, scrutinized Seeger’s medical records
with the assistance of Greenwald, whose long-term experience as a nurse allowed her
to put the records into context. Simpson reasonably requested documentation from
Seeger and, before concluding her inquiry, gave him the opportunity to submit additional
relevant information. While Dr. Grainger’s October 31 brief letter to CBT contained
general comments about Seeger’s inability to work an eight-hour day, it did not confirm
that Seeger was unable to work a light-duty schedule. Simpson perused the medical
records from Dr. Grainger, the Mayfield Clinic, the Kentucky Diagnosis Center which
performed the MRI, and the physical therapists. She testified that she had all of the
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 19
medical facts she needed, and therefore had no need to contact any of Seeger’s medical
providers for clarification of any points.
All in all, the record reflects that CBT made a reasonably informed and
considered decision before terminating Seeger. That Seeger or the court might have
come to a different conclusion if they had conducted the investigation is immaterial.
Seeger has not refuted CBT’s honest belief that the inconsistent facts before it were the
result of fraud on his part, and his claim that his termination was a pretext for
discrimination necessarily fails. We therefore conclude that the district court did not err
in granting summary judgment in CBT’s favor.
III.
For the foregoing reasons, we affirm the judgment of the district court.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 20
_________________
DISSENT
_________________
TARNOW, Senior District Judge, dissenting. I cannot agree with the majority’s
conclusion that Appellee Cincinnati Bell has established its right to judgment as a matter
of law. Taking the facts in the light most favorable to Appellant, a reasonable jury could
conclude that Appellee’s given reason for firing Appellant was pretextual and was not
an “honest belief.” There is therefore a genuine issue of material fact, and summary
judgment for Appellee is inappropriate.
Summary judgment is appropriate if “there is no genuine issue as to any material
fact and [] the movant is entitled to judgment as a matter of law.” Hunter v. Valley View
Local Sch., 579 F.3d 688, 690 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(c)). The
function of the court in examining a motion for summary judgment is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Further, “[i]n evaluating summary judgment, we must view all the facts and the
inferences drawn from it in the light most favorable to the nonmoving party.” Daugherty
v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008). Thus, summary judgment is
only appropriate if, viewing all facts and inferences drawn from them in the light most
favorable to the nonmoving party, the nonmoving party has failed to present “sufficient
evidence to permit a reasonable jury” to find in the nonmoving party’s favor. Lindsay
v. Yates, 578 F.3d 407, 416 (6th Cir. 2009). If a reasonable jury could find for the non-
moving party, summary judgment is “inappropriate.” Cockrel v. Shelby Cty. Sch. Dist.,
270 F.3d 1036, 1056 (6th Cir. 2001). Here, the majority concludes that no reasonable
jury could find that Appellee’s stated reason for firing Appellant was pretextual.
The majority focuses on the “honest belief” rule, that is, that an employer’s
honestly-held belief that it has a legitimate and non-discriminatory reason for firing a
person is sufficient, even if the factual basis of said belief is later shown to be false.
While this Court does not require that an investigation “be optimal or that it left no stone
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 21
unturned,” Smith v. Chrysler Corp., 155 F.3d 799, 807-08 (6th Cir. 1998), an employer
must demonstrate that it “reasonably relied on the particularized facts that were before
it at the time the decision was made.” Majewski v. Automatic Data Processing, Inc., 274
F.3d 1106, 1117 (6th Cir. 2001). When an employer’s decision-making process is
“unworthy of credence,” or where error on the part of the employer is “too obvious to
be unintentional,” reliance on such a process does not constitute an “honest belief.”
Smith v. Chrysler Corp., 155 F.3d 799, 807-08 (6th Cir. 1998).
In the summary judgment context as it relates to the “honest belief” rule, the
court should look to determine whether “sufficient evidence [exists] to permit a
reasonable jury” to find that the employer did not have an “honest belief” based on an
investigation that is “unworthy of credence.” If “the evidence is susceptible of different
interpretations or inferences by the trier of fact,” summary judgment is “inappropriate.”
Cockrel, 270 F.3d at 1056. Thus, whether the court finds “that CBT made a reasonably
informed and considered decision before terminating Seeger” is immaterial. The proper
question is whether a reasonable jury could have concluded that Appellee’s investigation
was “unworthy of credence.”
Appellee’s only reason for its purported “honest belief” that Appellant engaged
in disability fraud are the statements of two fellow employees who say they saw
Appellant walking for approximately fifty to seventy-five feet. In Appellant’s favor are
the statements of other employees who said Appellant was in extreme pain while
walking, the statements of Appellant’s treating physician, and the undisputed medical
evidence that Appellant was suffering from a condition that would have caused him to
be unable to work but was ameliorated by physical exercise such as walking. Despite
possessing all of this evidence, Appellee chose to neither consult an independent medical
expert nor even to consult Appellant’s physician prior to its decision to suspend and then
fire him.
In this case Appellee focused on isolated and flimsy evidence while ignoring
strong contrary evidence. Additionally, Appellee took no steps to obtain easily
accessible information that would have helped Appellee arrive at an informed decision.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 22
While this Court does not require that an investigation “be optimal or that it left no stone
unturned,” the lackluster nature of Appellee’s investigation strains the bounds of
credulity. Moreover, at the summary judgment stage the question is not whether
Appellee’s investigation was, in fact, “unworthy of credence,” but whether a reasonable
jury could have come to such a conclusion
The following facts can be said to fall in Appellant’s favor, and are undisputed:
a. Plaintiff was diagnosed with a herniated disc, sciatica, and lumbar
radiculopathy.
b. Appellee approved Appellant for FMLA and disability leave based on
medical evidence he presented to Theresa Greenwald, manager of
Appellee’s Medical Department and a Registered Nurse.
c. Prior to attending Oktoberfest, Appellant had several physical therapy
sessions.
d. On September 19, Appellant was instructed by Dr. Grainger, his treating
physician, to engage in increased physical activity as part of his
treatment. Dr. Grainger observed that Appellant had difficulty getting in
and out of a chair, changing positions, and walking. In his notes, Dr.
Grainger concluded that Appellant should engage in “no work.”
e. On September 20, Dr. Grainger called Theresa Greenwald and left a
message indicating that Plaintiff was unable to perform even restricted
work.
f. A CBT employee who saw Appellant at Oktoberfest, Larry Curless, said
Appellant “appeared to be in a lot of pain.”
g. Dr. Grainger, in a letter provided to Appellee by Appellant after his
suspension, stated that walking for one-and-a-half hours was not
equivalent to working an eight-hour day of even limited work and that
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 23
many patients with herniated discs were more comfortable standing or
walking than sitting.
h. Various additional medical evidence existed and was available to
Appellee. However, Appellee did not contact Appellant’s treating
physician, and confined its investigation to reviewing the medical
evidence it already possessed (and upon which FMLA and disability
leave had been granted), his employment history (which was excellent),
and the statements of persons who saw Appellant at Oktoberfest.
The following facts constitute the evidence that support Defendant’s “honest
belief” that Plaintiff engaged in disability fraud:
a. On September 23, Appellant walked a total of ten blocks to and from the
Oktoberfest festival in downtown Cincinnati, and remained at the festival
for a total of ninety minutes.
b. Michael Caplinger, one of the CBT employees who saw Appellant at
Oktoberfest, chatted with Appellant for fifteen minutes and saw him walk
“a few steps.” In a signed statement (identical to that of Glen Adkins,
below) he stated that Appellant was “seemingly unimpaired.”
c. Glen Adkins, a CBT employee who personally disliked Seeger, saw
Seeger through the crowd walking “seemingly unimpaired,” for fifty to
seventy-five feet. Adkins was aware Seeger was on disability leave and
reported seeing Seeger at Oktoberfest to Theresa Greenwald. Adkins
said that Appellant “did not appear to be impaired or disabled.”
d. Michelle Simpson, Appellee’s Director of Employee Relations and
Recruiting, consulting with Greenwald, reviewed Appellant’s medical
file and determined that Seeger’s reported medical condition and his
behavior at Oktoberfest were not consistent, and therefore to decided to
suspend and, later, fire Appellant.
No. 10-6148 Seeger v. Cincinnati Bell Telephone Co. Page 24
e. Simpson’s conclusion was that, because Appellant had reported himself
in excruciating pain, “reported difficult changing positions,” and his
doctor had told Appellee “no work,” but was seen “by two independent
witnesses walking around Oktoberfest where it’s a crowded venue and
not easily accessed . . . I thought that . . . was fraudulent on his part.”
I would conclude that the overwhelming weight of evidence supports Appellant’s
contention that Appellee’s investigation was so poor and one-sided as to be “unworthy
of credence” and thus not sufficient to satisfy an “honest belief.” At a minimum,
Appellant has presented sufficient evidence to permit a reasonable jury to find the same.
Summary judgment for Appellee is inappropriate. Therefore, I respectfully dissent.