Religious discrimination claims rise

This morning's Pittsburgh Post-Gazette reports on the increasing number of religious discrimination cases. Title VII (and Ohio's counterpart, R.C. 4112), prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. For example, religious harassment is just as illegal as sexual harassment, and an employer has the same duty to investigate a claim by a Muslim employee that he is being harassed on account of his religion as it would have to investigate a claim of sexual harassment by a female employee. In our post-9/11 world, such claims have become more and more prevalent.

The law also requires employers to reasonably accommodate the sincerely held religious practices of an employee or prospective employee, unless doing so would create an undue hardship. Some common examples of reasonable accommodation are flexible scheduling, voluntary substitutions or swaps, job reassignments, and lateral transfers. These situation most often arise when an employee requests a day off for a religious holiday (such as Good Friday or Yom Kippur), or seeks not to be scheduled to work on the Sabbath. An employer can claim undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs. For example, hiring a new employee or rescheduling other employees would probably present an undue hardship, while other employees volunteering to cover a shift most likely would not. Moreover, a religion does not have to be traditional to qualify for protection. The Post-Gazette article cites a California case in which a vegan bus driver won a judgment against a county transit agency for firing him after he refused to hand out "free hamburger" fliers for a fast food restaurant.

As workplaces are becoming more culturally, ethnically, and religiously diverse, religious discrimination will continue to be a hot button issue. Employers should not ignore requests for accommodations, no matter how strange they might seem. One person's Mind Body Energy is another person's Christianity. The accommodation may have a small price associated with it, but I can assure you such a price will almost always be less than the price of defending a discrimination lawsuit.

Ohio Supreme Court may be asked to clarify Coolidge

In addition to providing a good summary of the history of the public policy wrongful discharge tort in Ohio, Klopfenstein v. NK Parts Industries, Inc. also sets the stage for a potential battle in the Ohio Supreme Court over the proper statute of limitations for a claim under Coolidge v. Riverdale Local School Dist. Coolidge held that an employer cannot discharge an employee who is receiving temporary total disability workers' compensation benefits solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition. The Cuyahoga County Court of Appeals, in Brooks v. Qualchoice, held that Coolidge does not create a new public policy exception to the employment at-will doctrine, but instead illustrates conduct that is retaliatory under R.C. 4123.90 (the workers' comp anti-retaliation provision). In Klopfenstein, the Third District Court of Appeals disagreed, holding, "Coolidge creates an independent public policy exception to the employment at-will doctrine." These divergent holding have significant implications, because the two claims have vastly different statutes of limitations. An aggrieved employee has 4 years to file a public policy wrongful discharge claim, as compared to 180 days for a retaliation claim pursuant to R.C. 4123.90. The workers' comp retaliation statute also has strict notice requirements that a claimant must meet as a prerequisite to bringing suit, in addition to more restrictive damages.

Klopfenstein will not be the last word on this issue. Whether in an appeal from that case, or some future case, the Ohio Supreme Court will be called upon to clarify its Coolidge holding and definitively state the proper statute of limitations. In anticipation of that future battle, let me suggest that Klopfenstein was wrongly decided. R.C. 4123.90 states: "No employer shall discharge ... any employee because the employee filed a claim ... under the workers’ compensation act for an injury ... which occurred in the course of and arising out of his employment with that employer." If an employee is terminated because of workers' comp-related absences, that employee is being terminated because of the claim. Thus, the termination falls squarely within the coverage of R.C. 4123.90. It is the job of the legislature, and not the courts, to expand the statute of limitations for Coolidge claims if it sees fit to do so.

Big changes in the political winds?

I've written a lot since starting this blog about the various bills introduced in the House and Senate to amend Title VII and other employment law statutes. Indeed, one of my very first posts asked whether federal legislation would bring us new protected classes. Following my lead, the National Law Journal has nicely summarized the assorted employment law reforms Congress has introduced this session:

• Ledbetter Fair Pay Act: reverses the Ledbetter decision by setting forth that each discriminatory paycheck is a discrete act of discrimination for purposes of triggering Title VII's statue of limitations.
• American with Disabilities Restoration Act: amends the definition of "disability" to undo a decade of Supreme Court precedent.
• Employment Non-Discrimination Act: adds protections for sexual orientation and gender identity to Title VII.
• Genetic Information Non-Discrimination Act: prohibits employment decisions based on genetic information.
• Civil Rights Tax Relief Act: eliminates taxation of non-economic damages received by employment plaintiffs.
• Equal Remedies Act: removes Title VII's caps on compensatory and punitive damages.
• Arbitration Fairness Act: invalidates pre-dispute arbitration agreements requiring arbitration of employment disputes.

Some of these reforms, namely ending the loophole that allows companies to invidiously discriminate on the basis of sexual orientation, are long overdue. Others, such as the ADA Restoration Act, the Equal Remedies Act, and Ledbetter Fair Pay Act, will have far greater and more onerous consequences for employers. Because the Democrats don't have enough votes to overturn a Presidential veto, most of these bills currently are nothing more than political rhetoric. If, however, a Democrat wins the White House, 2009 will be a very interesting year, as companies should expect sweeping changes to federal employment laws, the likes of which have not been seen for more than a decade.

I can't make this stuff up

Ollis v. HearthStone Homes presents a textbook example of how not to make personnel decisions, and is also just plain funny.

The owner and president of HearthStone, John Smith, practices a fringe religion that focuses on Mind Body Energy (MBE) sessions to cleanse one's negative energy. He required his employees attendance at such MBE sessions to enhance their work performance. The case recounts Smith's interesting MBE practices:

According to Smith, an employee’s negative energy could be discovered either through a machine that tests a person’s electromagnetic energy field or through a manual process called “muscle testing.” Muscle testing may require a person to extend his or her arms while answering “yes” or “no” questions. If the person’s extended arms remain strong while questioned as someone pushes down on the arms, the answer is “yes,” whereas, weak arms indicate an answer of “no.” Another example of muscle testing is to place two fingers together and to answer “yes” or “no” questions. If the fingers remain together, the answer is “yes”; whereas, if they separate, the answer is “no.” Smith used muscle testing to make business decisions. Smith equates muscle testing “to someone who may pray before they make decisions.”

On one occasion, Smith determined by muscle testing an employee that drainage problems in a HearthStone subdivision were caused by that employee's ancestors perishing on the land during the Ice Age. Smith determined that the employee was unknowingly defending the land on behalf of her ancestors, and required her to attend MBE sessions to cleanse her negative energy.

Smith also used muscle testing in conducting a sexual harassment investigation against the plaintiff, Doyle Ollis, a devout Christian. After the investigation, Smith terminated him for “poor leadership and lack of judgment," which the jury found to be pretext for Ollis's opposition to Smith's MBE practices and religious discrimination. For the termination, the jury awarded Ollis a whole whopping dollar in damages (plus attorneys fees). Perhaps the jury's low award was influenced by Ollis's admission that he had asked the complaining female subordinate several inappropriate questions, including asking her about her “freakiest” sexual encounter, how long she had known her spouse before she had sex with him, how many sexual partners she had, and if she wore thong underwear. As an aside, HearthStone later terminated the complaining employee for reportedly “removed her clothing at a golf outing and ... doing cart-wheels naked on a golf course.”

Like I said, I can't make this stuff up.

Suspended Bengal claims disability discrimination

The following is from the Cincinnati Bengal's website:

The attorney for Bengals linebacker Odell Thurman has filed a claim of disability discrimination against the NFL. John Michels said Thursday that he has notified the U.S. Equal Employment Opportunity Commission that he feels his client is being discriminated against because he is perceived as an alcoholic.

Michels said it doesn't matter that Thurman acknowledged in court that he is an alcoholic when he appeared for a DUI stemming from a Sept. 25, 2006 traffic stop. He indicated that Thurman has passed all required programs stipulated by the league.

"He has not had an alcoholic problem since the incident last fall," Michels said.

The NFLPA has not yet responded to Thurman's request to appeal to NFL commissioner Roger Goodell's July 26 decision to extend Thurman's year-long suspension for another year. Michels said if the EEOC finds for Thurman, the commission can offer such remedies as reinstatement and back pay.

Michels cited a recent precedent. The EEOC ruled in favor of Roy Tarpley, the former Dalllas Mavericks forward banned in 1995 for violating the league's substance abuse policy. The commission said the NBA violated the Americans with Disabilities Act when it didn't reinstate Tarpley even though he had passed all drug tests taken in the last four years.

Michels said the Bengals are named in the claim only because they are Thurman's direct employers. He said the claim was not a Bengals decision and that the commission is aware that the suspension came from the NFL and not the club.

I'm not sure what to make of this claim. On the one hand, you have a new NFL commissioner try to put his stamp on the league as a no-nonsense disciplinarian. Then again, if Thurman has truly been clean and sober for the past year, and has complied with the terms of his suspension, it could appear that the NFL is punishing him for his addiction, and not past violations of league rules. My best guess is that the EEOC will dodge these tough issues and never reach the merits of the charge, because the entity imposing the discipline, the league itself, is not Thurman's "employer," and his employer, the Bengals organization, had nothing to do with the discipline.

6th Circuit expands FMLA job restroration rights

Yesterday the 6th Circuit decided Bryson v. Regis, a significant FMLA decision that could have far-reaching implications for employers' administration of FMLA leave programs and employees' job restoration rights.

Karen Bryson worked in a Lexington, Kentucky, Supercuts for 15 years, starting as a stylist and working her way to store manager. As store manager, Bryson reported to area manager Kim Sawyer. In December 2003, after injuring her knee more than year hence, Bryson took an FMLA leave of absence for corrective surgery. Deposition testimony revealed that Sawyer was very upset with Bryson's leave, referred to her in management meetings as a "crippled ass," and told co-workers that she would make sure Bryson did not have a job to return to after her leave.

Bryson was scheduled to return on March 10, 2004, at the end of her 12 week entitlement. On March 8, Bryson left Sawyer a voice mail message to let her know that she could not return to full status on March 10. When Sawyer never returned the call, Bryson next contacted one of Sawyer's contemporaries, Julie Wilson. Bryson told Wilson that she would not be able to stand for 10 hours a day, but that she could work a full day albeit with some standing and some sitting. Also on March 8, Bryson's doctor completed Supercut's "Release/Intent to Return to Work" form. On that form, Bryson checked the box that indicated that she could not at that time perform all of the essential functions of her position and was requesting assistance with her temporary restriction of seated work only. Bryson mailed the form to Supercuts on March 8, but Supercuts did not receive it until March 15.

Meanwhile, on March 10, when Bryson was no call/no show, Supercuts terminated her employment via a letter authored by Supercut's corporate FMLA Administrator, which stated: "It has been brought to my attention that as of today your health care provider has not released you to return to work with or without restrictions. Because you have exhausted your 12 workweek entitlement to job protected leave under the FMLA, we are unable to continue to hold your position."

Bryson sued Supercuts and its parent corporation, Regis Corp., for FMLA retaliation and disability discrimination. The district court granted summary judgment to the employer and dismissed Bryson's lawsuit. The Sixth Circuit, however, in a decision that has potentially far-reaching implications in how employers administer their FMLA leave programs, reversed the dismissal of the FMLA retaliation claim and remanded the case for trial.

The resurrection of Bryson's FMLA claim is troubling. The Court focused on the gap between Supercut's letter of termination and its receipt of Bryson's "Release/Intent to Return to Work" form, coupled with Sawyer's anger over the leave. It found those two factors to be sufficient evidence of pretext to get this case to a jury. It appears that the 6th Circuit was bothered by Sawyer's comments, and saved Bryson's claim even though she could not have been legally entitled to her job on March 10. Indeed, the Court's analysis ignores one crucial undisputed fact -- regardless of anyone's intent, Bryson was simply not able to return to her job on March 10. She was instead requesting reinstatement to a temporary light duty position, but as the 7th Circuit confirmed earlier this month, the FMLA does not provide for light duty. Nevertheless, Bryson v. Regis implies, if not explicitly holds, that employers cannot terminate an AWOL employee at the end of FMLA leave if the employer knows that the employee can return to work in some limited fashion.

This case seems to create new rights under the FMLA that heretofore did not exist. Even though Bryson was not disabled under the ADA, the 6th Circuit seems to require Supercuts to have accommodated her injury either by providing her light duty, otherwise modifying her job functions, or extending her leave beyond the FMLA's 12 weeks. Bryson presents a significant expansion of FMLA rights, and places all similar terminations at risk unless the employee is entirely unable to return in any capacity at the end of the FMLA leave.

The Bryson case is also a good reminder for companies to build examples such as Sawyer's retaliatory comments into management harassment training. While the 6th Circuit seems to have expanded employee job restoration rights under the FMLA, one has to wonder if this case would have come out differently without Sawyer's statements about Bryson's injury and continued employment.

Does individual liability have unintended consequences?

Law.com reports today on the increasing number of executives and managers being personally sued for their work-related decisions. Under Ohio's employment discrimination statute, managers and supervisors have been personally liable for their own acts of discrimination since the Ohio Supreme Court decided Genaro v. Central Transport in 1999. The federal wage and hour laws (the FLSA, the FMLA, and the Equal Pay Act) also provide for personal liability, but the same does not hold true for Title VII, the ADEA, and the ADA. Many Ohio discrimination suits name an individual in addition to the company because suing a local manager or supervisor of a non-local company will block removal to federal court. Does that strategy, however, have an intended consequence? According to the law.com article, some attorneys believe that naming an individual unnecessarily ups the ante in employment discrimination cases, causing the defense to dig in their collective heels, making cases more difficult to settle because more people are involved who want their personal reputations cleared. In fact, employers often take these cases just as personally as do employees, because they involve hurtful allegations of racism, sexism, or other forms of bigotry. Whether suing a manager or supervisor will render a case more difficult to resolve should be considered before any individual is added as a defendant to a discrimination suit.

UPDATED - New rules require termination of illegal immigrants

The Department of Homeland Security has announced new rules on the safe-harbor procedures for employers who receive SSA No-Match Letters. These rules require employers to terminate any employee who uses a fake social security number or otherwise cannot be documented as legal. The DHS has also published an interactive Safe Harbor Information Center for employers.

The regulations describe with specificity what steps employers should take upon receipt of a no-match letter:

1. Verify within 30 days that the mismatch was not the result of a record-keeping error on the employer’s part;
2. Request that the employee confirm the accuracy of employment records;
3. Ask the employee to resolve the issue with SSA;
4. If these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA, and retain a record of the verification with SSA; and
5. Where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographic data.

Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons.

Costs of compliance will potentially be high, especially for those employers that rely upon unskilled labor. Costs of non-compliance, however, could potentially be devastating. Employers cannot ignore these new rules. If you choose to disregard a No-Match Letter, and it is later determined that some of the employees listed are not authorized to work, your receipt of the letter is evidence that you have knowingly continued to employ unauthorized workers, which could lead to significant criminal and civil sanctions.

Are you facebooking as part of background checks?

Msnbc.com writes on the wealth of information employers can learn from a job applicant's Facebook and other social networking webpages.

Job candidates who maintain personal sites on Facebook or MySpace are learning — sometimes the hard way — that the image they present to their friends on the Internet may not be best suited for landing the position they’re seeking.

Although many employers are too old to qualify as members of the Facebook Generation, they’re becoming increasingly savvy about using social networking sites in their hiring due diligence. That has both job candidates and human resources professionals debating the ethics and effectiveness of snooping on the Web for the kind of information that may not come up in a job interview.

According to a March survey by Ponemon Institute, a privacy think tank, 35 percent of hiring managers use Google to do online background checks on job candidates, and 23 percent look people up on social networking sites. About one-third of those Web searches lead to rejections, according to the survey.

Social networking sites have gained popularity among hiring managers because of their convenience and a growing anxiety about hiring the right people, researchers say.

Big corporations long have retained professional investigators to check job applicants’ academic degrees, criminal records and credit reports. But until now the cost has deterred the ability of smaller firms to do the same level of checking, said Sue Murphy, a director of National Human Resources Association.

These online searches can reveal a wealth of information not otherwise attainable through a more customary background and criminal records search: risqué pictures, pictures of drug use or heavy alcohol use, poor writing skills, and radical political positions. Any one of these could convince a potential employer that a particular job candidate is not not a good fit or not worth the risk of hiring.

A word of caution -- if you choose to make these searches part of your hiring process, you should do so uniformly to avoid the appearance of disparate treatment. That is not to say that every job candidate for every position needs to be screened, but if you are going to screen one candidate for a particular position, you should do the same for all candidates, and apply the same standards based on the results. While the online search itself is lawful, it is still illegal to use that information in a disparate manner to unlawfully discriminate.

OCRC appears to bend on pregnancy leave regulations

Sunday's New York Times is reporting that Ohio business groups have successfully lobbied the Ohio Civil Rights Commission to revise its proposed maternity leave regulations. The article quotes various business organization leaders, in addition to the OCRC's Chairperson, in discussing the merits or lack thereof of the proposed regulations:

Jeanine P. Donaldson, who this year became the first woman to lead the commission, said the law on maternity leave needed to ensure that more women were protected against discrimination.

Ms. Donaldson said she was willing to bend on the number of weeks of guaranteed leave but hoped to preserve the stipulation that length of service would not affect eligibility.

“I don’t think a woman can decide when to get pregnant,” Ms. Donaldson said. “To choose motherhood over livelihood, I don’t think that is what the legislators had in mind.”

Business groups say the expanded leave would damage the economy. “There’s really no reason to change the current law,” said Tony Fiore, director of labor and human resources policy for the Ohio Chamber of Commerce.

Requiring small businesses to hold open positions would be a hardship, he said, as would the immediate eligibility for new workers at large corporations.

Ty Pine, legislative director for the Ohio branch of the National Federation of Independent Businesses, said the market was doing a good job of establishing reasonable maternity leaves for workers and businesses.

“We would like to maintain the current practice of reasonable time off without mandating specifically,” Mr. Pine said.

It now appears that some modified form of the revised OAC 4112-5-05(G) will go the legislature for approval. A revision to the amount of the guaranteed leave entitlement would take away rights that are already available to nearly all Ohio employees under judicial interpretations of the current 4412-5-05(G). I am amazed that the OCRC would bend so easily from a little bit of pressure from business lobbies. If the OCRC actually agrees to bend on the issue of the amount of available guaranteed leave, it will represent a genuine victory for small businesses. I will continue to post updates on this issue as the revised regulations are published.

You might want to double-check those FMLA medical certifications

Check out this article from the Chicago Sun Times. On MyExcusedAbsence.com (and other websites like it) employees can purchase authentic looking doctors notes to excuse their absences from work. According to a testimonial on the website: "I've managed to take the 9 weeks off using these templates! It couldn't be any easier!" Needless to say, providing a fake document for any reason is grounds for immediate termination. However, consider the overburdened HR professional, confused already by the FMLA's myriad requirements. Does that person have the time to check the veracity of each and every note provided by an employee? Nevertheless, the next time you think an employee might by trying to game the system, you might want to take a harder look at that doctor's note. Under the FMLA employers have options to check the veracity of an employee's serious health condition:

• Grant provisional leave until you resolve any doubts about the validity of the serious health condition.
• Send the employee for a 2nd opinion at the employer's expense.
• Request recertification during the leave under certain circumstances.
• Require a fitness for duty exam before allowing the employee to return to work.

These tools, when used consistently, properly, and dovetailed with appropriate corrective action, can deter employees' frauds such as MyExcusedAbsence.com.

Bill Proposes Elimination of Damages Caps

On the heels of the passage of the Lilly Ledbetter Fair Pay Act, Congress continues to try to tinker with the federal employment discrimination laws. Senator Edward Kennedy has introduced legislation that would eliminate the caps on the amount of non-economic compensatory damages and punitive damages plaintiffs can recover in employment discrimination cases under Title VII and the ADA -- the Equal Remedies Act of 2007. Senator Kennedy bases this legislation on the inequities in available damages between race and national origin discrimination and all other forms of discrimination prohibited by Title VII and the ADA (sex, religion, disability, etc.). Employees suing under Title VII or the ADA are capped in the amount of damages they can recover, while employees suing under 42 U.S.C. 1981, which only prohibits race and national origin discrimination, has no such limits. Of course, the Senator could just propose capping damages under Section 1981. As with most of the other pro-employee legislation currently pending in Congress, there is little chance of President Bush actually signing the Equal Remedies Act into law. January 2009, however, is not that far off.

A weighty issue...

In June, I reported on a small but growing trend of overweight employees trying to claim coverage under the Americans with Disabilities Act. Perhaps because these claims are seldom brought, the Boston Globe reports that Massachusetts is considering legislation to cover "fat" (as well as "short") as a protected class. Such legislation finds support in studies which show that obesity holds back one's career. One possible explanation is that obesity is linked to greater health costs, which in turn raise group health plan rates.

One could argue that this legislation is superfluous because the ADA already protects these employees. While courts almost uniformly find that obesity is not a protected disability (as compared to morbid obesity), health conditions associated with obesity (such as diabetes, joint problems, respiratory difficulties, high blood pressure) are most likely protected. Moreover, because it is not only unlawful under the ADA to discriminate because of an employee's disability, but also because the employee is regarded as having a disability, it is arguably unlawful to refuse to hire, to discipline, or to terminate an overweight employee because of the risk of increased health costs from obesity-related illnesses.

Arbitration Fairness Act would ban mandatory ADR of employment disputes

Mandatory arbitration agreements have long been favored as a tool by employers to limit the risks associated with jury trials. If the Democrats have their way, however, that tool may soon no longer be available. The Arbitration Fairness Act is currently pending in both the House and the Senate. These bills would amend the Federal Arbitration Act to render invalid and unenforceable pre-dispute arbitration agreements that require arbitration of employment disputes. Such disputes could only be arbitrated if the employer and employee agree to submit to arbitration after the dispute arises. The law's purpose is to prevent those with less bargaining power, such as employees, from being forced to arbitrate and give up their right to a jury trial. If this bill becomes law (which is doubtful as long as there is a Republican in the White House), arbitrations of employment disputes will all but disappear. It is hard to imagine a situation where a plaintiff would agree to give up a jury trial to have a dispute decided by a panel of arbitrators. If you currently use or would like to use arbitration as a means to resolve claims by your employees, you should write your Congressperson and Senator and urge opposition of these bills.

I am not an anti-dentite!

John Jordan, D.D.S. v. Ohio Civil Rights Commission, out of Fayette County, would not have made my radar except for the fact that it is the second case in as many weeks to involve pretty egregious acts by a dentist. In this case, the OCRC awarded Teresa Smith, a dental assistant, $45,568 for being subjected to the following sexual harassment by the good dentist, all within the span of a few weeks:

• Grabbing her from behind and pulling her towards him, on her second day of work.
• Telling her that his wife was going on vacation and suggesting a rendezvous.
• Describing the breeding habits of his horses in detail.
• Suggesting that she needed a "sugar daddy."
• Advising that several of his friends would "drop money" on her for sex.
• Recounting that the prostitutes in Vegas hated when men took Viagra because it wore them out.
• Relating to patients that she used to work in a strip club.
• Telling her that he could not tell about her body type because he hadn't seen her naked.
• Asking if he could show her nude photos.
• After a patient commented that she was left-handed, recounting that left-handed people make better lovers.

Maybe the ADA should consider a session on sexual harassment training at its next annual meeting.

Sixth Circuit confirms that it will not second-guess an employer's honest belief

The Sixth Circuit this week handed down two decisions that make it clear that pretext for discrimination or retaliation does not exist if the employer engages in a reasonable investigation and has an honest and good faith belief in the rationale for its employment decision. These cases are a good reminder that one of the best defenses to any discrimination, retaliation, or harassment claim is a thorough, well-documented investigation.

Michael v. Caterpillar Fin. Servs. Corp. concerned a six-year African-American employee who had a good employment record until her manager was replaced. Shonta Michael claimed that the discipline, including a very confrontational meeting in which the new manager aggressively yelled at her, was racially discriminatory and that she was retaliated against after she complained over the manager's treatment of her. Caterpillar, on the other hand, claimed that any conflict and discipline was solely because of legitimate performance issues. The Court skirted the issue of whether the disciplinary action (a performance plan) constituted an "adverse employment action," finding that regardless Michael could not prove that the employer's actions were pretext for discrimination or retaliation. Caterpillar's investigation included interviews of all of Michael's co-workers, many of whom found her difficult to work with. Michael claimed that her disagreement those facts established pretext. The Court disagreed:

Michael’s disagreement with the facts uncovered in Caterpillar’s investigation does not create a genuine issue of material fact that would defeat summary judgment “as long as an employer has an honest belief in its proffered nondiscriminatory reason.” The key inquiry in assessing whether an employer holds such an honest belief is “whether the employer made a reasonably informed and considered decision before taking” the complained-of action. An employer has an honest belief in its rationale when it “reasonably relied on the particularized facts that were before it at the time the decision was made.” “[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” ... Caterpillar presented sound, nondiscriminatory reasons for the action that it took based on a reasonable investigation of events that occurred after Michael’s favorable performance review.

Because Caterpillar had extensive documentation of its investigation, it could reasonably rely on its conclusions with no finding of pretext or retaliatory animus.

By comparison, in Denhof v. City of Grand Rapids, the issue was whether the Grand Rapids Chief of Police reasonably relied upon a psychological fitness for duty exam in refusing to permit the plaintiff to return to work. The Court found that the Chief's reliance on the medical opinion was unreasonable because the doctor's written opinion showed that he had a preordained opinion on Denhof's unfitness for duty:

In his January 11, 2002, letter recommending a fitness for duty examination for Patricia Denhof, Dr. Peterson employed language that, at a minimum, suggested his opinion had already been formed. For instance, he noted that in view of the tension between Denhof and the department, “it is difficult to imagine how she could continue to work in this environment.” ... This language should have signaled to Chief Dolan, and indeed any reasonable recipient, that Dr. Peterson was predisposed to finding Denhof unfit for duty. Indeed, after comments like this, it is hard to see any possibility that Dr. Peterson’s examination would yield a result other than finding that Denhof should be separated from the police force. Instead, when Dolan was confronted with a psychologist who had already formed his opinion before examining the patient, he asked that doctor to proceed with the examination. In doing so, he forfeited the protection of the honest belief rule, because the jury could have easily concluded that his reliance on a doctor who had already made up his mind did not qualify as reasonable reliance.

According to the Court, the employer could not have an honest belief about Denhof's lack of fitness to return to work because, according to the opinion the doctor upon whom it was relying was predisposed. Thus, the decision could not have been bona fide.

I'm troubled by the ease with which the Denhof panel writes off the employer's reliance on a medical opinion and delves into the motivations of the psychologist. The doctor's language does not seem nearly as clear to the me as it did to the Sixth Circuit. Moreover, if an employer cannot have an honest belief about a medical opinion what can it hold an honest belief about? Nevertheless, these two cases reaffirm the honest belief rule, and demonstrate that courts will not second-guess a personnel decision if it is based on a rational, reasoned, honest belief.