Suspicious Internal Investigation Report Will Not Support Application of Honest Belief Rule in the Sixth Circuit

Last week, a per curiam panel of the Sixth Circuit reversed an employer’s summary judgment decision on an ADEA claim and criticized the trial court’s application of the honest belief rule.   Stewart v. Kettering Health Network, No. 13-4080 (6^th Cir. 8-13-14).  In that case, the plaintiff police officer had been terminated following an investigation for using excessive force against a psychiatric patient by kicking him in the head after he had been subdued.  He denied the allegation and pointed out that a younger officer – who had not reported the incident -- had punched the patient and broken his nose, but had not been disciplined.  The plaintiff’s alleged excessive force had not been mentioned in the physicians’ contemporaneous notes of the situation, were not the subject of a patient complaint, and were not reflected in the patient’s injuries, but was the focus of a subsequent investigation by the allegedly biased supervisor.  The plaintiff presented evidence of his supervisor making ageist comments and jokes and discouraging him from seeking a promotion on account of his age.  His supervisor also only seemed to hire young officers.  Based on this evidence, the Court refused to credit or apply the honest belief rule to the supervisor’s investigation of the plaintiff’s alleged misconduct which supposedly justified his termination.

The Sixth Circuit panel noted that it applies a modified version of the honest belief rule:

 . . . for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” . . . . Even when the employer makes such a showing, “the protection afforded by the rule is not automatic. . . . [O]nce the employer is able to point to the particularized facts that motivated its decision, the employee has the opportunity to produce ‘proof to the contrary.’”

 . . . the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” . . . . “[w]hen the employee is able to produce sufficient evidence to establish  that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process ‘unworthy of credence,’ then any reliance placed by the employer in such a process cannot be said to be honestly held.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.