NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0628n.06

                                           No. 13-4080                                  FILED
                                                                                  Aug 13, 2014
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


DOUG STEWART,                                  )
                                               )
       Plaintiff-Appellant,                    )
                                               )       ON APPEAL FROM THE UNITED
                                               )       STATES DISTRICT COURT FOR
v.                                             )       THE SOUTHERN DISTRICT OF
                                               )       OHIO
                                               )
KETTERING HEALTH NETWORK;                      )                OPINION
GRANDVIEW HOSPITAL,                            )
                                               )
       Defendants-Appellees.                   )
                                               )


BEFORE: NORRIS, CLAY, and KETHLEDGE, Circuit Judges.

       PER CURIAM. Plaintiff Doug Stewart appeals from a grant of summary judgment to

defendants, Kettering Health Network (“KHN”) and Grandview Hospital (“the Hospital”). Stewart

v. Kettering Health Network, 

(S.D. Ohio 2013). Plaintiff worked as a police

officer at the Hospital, which is located in Dayton, Ohio, and is part of KHN. In February 2011,

KHN terminated him for allegedly kicking a restrained psychiatric patient in the head. Plaintiff

denies doing so and contends that he was fired because he was–at 59–the oldest officer on the force.

His amended complaint included state and federal claims of age discrimination, retaliation, and a

state-law claim for intentional infliction of emotional distress. On appeal, plaintiff focuses

exclusively on his federal age discrimination claim.


                                                   

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                                                  I.

       Plaintiff was hired by the Hospital in 2003 as a security officer. At the time, the chief was

Roger Harris; he was replaced in 2009 by David Miller. That fall the Hospital was commissioned

as a police department, which required all security officers, including plaintiff, to complete the Ohio

Police Officer Training Academy (“OPOTA”). At the time, only plaintiff and one other officer,

Jimmie Whittle, had not been certified by the OPOTA.

       Miller testified that plaintiff did very well at OPOTA. Miller attended plaintiff’s graduation

where it was clear that “the guys liked him a lot” and he was selected as class speaker. Despite this

success, however, plaintiff alleges that Miller repeatedly told him that he was too old and needed

to retire. From February 2010 until his termination on March 2, 2011, plaintiff was the oldest officer

on the force. He was also the oldest officer to complete OPOTA training successfully.

       On February 22, 2011, plaintiff began his shift at two in the afternoon. He heard that another

officer, Marty White, was having trouble with a patient in a padded examination room. Padded

rooms were used for patients who might harm themselves or others. This particular individual had

arrived after a “pink slip” was issued; this authorizes the staff to hold a patient for up to 72 hours

in order to perform a psychiatric evaluation. The patient was visibly upset and swearing loudly.

       When plaintiff arrived at the examination room, White was outside. Dr. Robert Hunter, who

was nearby, asked the officers to undress the patient and put him into a hospital gown. According

to plaintiff, when they attempted to remove his undershirt, the patient punched White “in the side

of the temple area.” The patient threw more punches and one caught plaintiff in the neck. The men



                                                  

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exchanged blows. White hit the patient “in the nose and busted his nose.” Plaintiff then used his

stun-gun to subdue the patient.

        During this altercation, Dr. Hunter and Sergeant Jones entered the room. In a subsequent

declaration, Dr. Hunter stated that, “[w]hen the situation was under control, and the patient no longer

presented a physical threat to anyone, Mr. Stewart kicked the patient in the head.” In the doctor’s

view, the kick “appeared to be purely retaliatory.”

        Dr. Boyce Fish was also present and signed a declaration stating that “Mr. Stewart’s actions

in kicking a restrained patient in the head were entirely unnecessary and unjustified.” However,

neither doctor saw fit to mention the kicking incident in their contemporaneous, handwritten notes

of the confrontation.

        Sergeant Jones notified Lieutenant Spieles of what had occurred. Spieles then informed

Chief Miller who, along with Captain Molchan, investigated the incident. Molchan interviewed the

doctors, Officer White, and plaintiff. In statements given by Jones and Spieles, both indicated that

the doctors disapproved of plaintiff’s actions. For his part, plaintiff denied kicking the patient.

Molchan recommended that plaintiff be fired. According to his declaration, he did not consider

plaintiff’s age in making that decision.

        During his deposition, plaintiff recalled a different scenario. He remembered Dr. Hunter

placing his foot on the patient’s head in order to avoid contact with either the patient’s blood or spit.

Because the patient continued to spit, plaintiff placed his foot, along with Dr. Hunter’s, on the

patient’s head. When plaintiff allegedly told Dr. Hunter to remove his foot because the situation was

under control, Hunter refused, telling plaintiff, “No. He’s not gonna spit . . . on me.” Plaintiff

                                                   

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attributes the injuries received by the patient to the punch he received from Officer White. After the

altercation, plaintiff recalls the doctors telling him that the situation had been handled well.

        Defendants cited use of excessive force as the ground for plaintiff’s termination. Plaintiff

strongly disagrees and alleges age discrimination was the reason. In his deposition, plaintiff testified

that he had endured constant remarks about his age from Chief Miller. When plaintiff approached

Miller about possibly applying for a sergeant’s or lieutenant’s position, for instance, Miller told him

that he was too old for those duties and that he was looking for younger, better educated men. Miller

also told him that he wanted “young bulls,” not “old guys.” According to plaintiff, Miller talked

about his age so much that plaintiff heard it in his sleep. In addition, at the OPOTA graduation,

plaintiff’s wife recalls Molchan and Miller speaking of plaintiff contemptuously as old and

embarrassing to the department.

        There is no dispute that plaintiff was the oldest officer on the force. During his deposition,

Chief Miller conceded that he had discussed retirement with plaintiff, but contended that he had

similar conversations with all of his employees. He denied urging plaintiff to retire and rejected the

suggestion that he had spoken disparagingly about age—other than to joke that “us old guys got to

stick together.”

        Lieutenant Andy Sullivan also testified by deposition. He rarely worked the same shift as

plaintiff but noted that Miller asked him to “keep an eye on him.” In Sullivan’s view, “it seemed

like [plaintiff’s] days were numbered.” However, he did not recall any ageist statements made to

plaintiff other than “jokes among all of us.” He noted—and it is undisputed—that Miller “wanted

young people in there as far as the hiring pattern.” When asked directly, Sullivan stated that he

                                                   

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believed Miller wanted plaintiff gone because “he didn’t like his temper, felt like he was short-

fused,” not because of his age.

       Finally, plaintiff points out that Officer White was not disciplined for his role in the

altercation with the patient that led to plaintiff’s termination even though he was the person who

broke the patient’s nose. White was 36 at the time.

                                                 II.

       We review a district court’s grant of summary judgment de novo. Tysinger v. Police Dep’t

of City of Zanesville, 

, 572 (6th Cir. 2006). A motion for summary judgment should

be granted if the moving party demonstrates that there is no genuine dispute of material fact and he

is entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a).

       Under the Age Discrimination in Employment Act (“ADEA”), it is unlawful for an employer

“to fail or refuse to hire or to discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff can establish such a claim by either

direct or circumstantial evidence. In this case, plaintiff relied upon circumstantial evidence and

therefore the district court utilized the burden-shifting framework first set forth in McDonnell

Douglas Corp. v. Green, 

(1973). The burden falls on the plaintiff first to establish a

prima facie case of discrimination, which requires him to come forward with evidence that 1) he was

a member of a protected group; 2) he was qualified for his job; 3) he suffered an adverse

employment action; and 4) circumstances support an inference of discrimination. Blizzard v. Marion



                                                  

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Technical Coll., 

, 283 (6th Cir. 2012) (quoting Swierkiewicz v. Sorema N.A., 

, 510 (2002)), cert. denied, 

(2013)).

       In this case, the district court concluded that plaintiff had established a prima facie case. It

found that the first three elements had been satisfied. As to the fourth element—that he was either

replaced by a substantially younger person or was treated differently than similarly-situated non-

protected employees—the court concluded that he had at least raised a genuine issue of material fact.

Defendants do not challenge that conclusion and we need not address it here.

       When a plaintiff establishes a prima facie case, the burden shifts to defendants to articulate

a legitimate, non-discriminatory reason for their adverse employment action. 

. As already mentioned, the reason given by defendants was plaintiff’s use of excessive force.

With that, the burden shifts back to plaintiff to show that the legitimate, non-discriminatory reason

given is a pretext for discrimination.

       Central to the analysis of pretext, and critical to the resolution of this appeal, is this circuit’s

adoption of a modified version of the Seventh Circuit’s “honest belief” rule. Smith v. Chrysler

Corp., 

, 807 (6th Cir. 1998) (applying rule to the Americans with Disabilities Act).

This court has also applied the rule in the ADEA context. 

.

       We have outlined the honest belief rule as follows:

               “Pretext may be shown ‘either directly by persuading the [trier of fact] that
       a discriminatory reason more likely motivated the employer or indirectly by showing
       that the employer’s proffered explanation is unworthy of credence.’” Manzer v.
       Diamond Shamrock Chems. Co., 

, 1082 (6th Cir. 1994) (quoting
       

, 

). Under the “honest belief” rule developed
       by the Seventh Circuit, “so long as the employer honestly believed in the proffered
       reason,” an employee cannot prove pretext even if the employer’s reason in the end

                                                    

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       is shown to be “mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp.,
       

, 806 (6th Cir. 1998). We have rejected the Seventh Circuit’s bare
       “honest belief” doctrine and instead have adopted a modified honest-belief approach.
       

“[t]o the extent the Seventh Circuit’s application of the ‘honest
       belief’ rule credits an employer’s belief without requiring that it be reasonably based
       on particularized facts rather than on ignorance and mythology, we reject its
       approach”). Under this approach, 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.” 

(defining standard in the context of an Americans
       with Disabilities Act claim); see also Balmer v. HCA, Inc., 

, 614 (6th
       Cir. 2005) (applying Smith rule in Title VII retaliation case). 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.’” 

(quoting Pesterfield v. TVA, 

, 443
       (6th Cir. 1991)).

               In determining whether an employer “reasonably relied on the particularized
       facts then before it, we do not require that the decisional process used by the
       employer 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.” 

will not “micro-manage the
       process used by employers in making their employment decisions,” we also will not
       “blindly assume that an employer’s description of its reasons is honest.” 

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.” 

Wright v. Murray Guard, Inc., 

, 707-08 (6th Cir. 2006) (citations omitted); see also

Clay v. United Parcel Serv., Inc., 

, 713-14 (6th Cir. 2007).

       The district court applied the honest belief rule and reached the following conclusion:

       Grandview has produced evidence that Miller reasonably relied upon the
       investigation of the incident when he terminated Stewart’s employment. The
       investigation revealed that Stewart used excessive force on the patient. Further,
       Stewart has not identified sufficient evidence to establish that Grandview failed to

                                                 

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       make a reasonably informed and considered decision. Therefore, there are no
       genuine issues of material fact and Grandview’s legitimate, non-discriminatory
       reason for terminating Stewart’s employment is not a pretext for discrimination.

.

       Plaintiff points to a number of material facts that undercut the decision of the district court.

First, he contends that evidence supports a conclusion that he did not use excessive force. He cites

the following evidence: 1) defendants’ investigators, Miller and Mochan, were not present when the

incident occurred; 2) the contemporaneous written statements of Drs. Fish and Hunter made no

mention of it; 3) Officer White did not report it; 4) the patient did not complain about it; and 5) the

patient’s injuries were not commensurate with kicking. While the subsequent declarations of the

doctors and Sergeant Jones’s report say otherwise, plaintiff argues that the evidence favorable to his

position raises disputed material issues of fact sufficient for him to withstand summary judgment.

       In a similar vein, plaintiff argues that the plethora of ageist comments made by Miller made

it more likely than not that the explanation for the termination was a pretext. He directs us to Brooks

v. Davey Tree Expert Co., 478 F. App’x 934 (6th Cir. 2012). In that case, plaintiff Johnnie Brooks

worked as a foreman for a tree-trimming company. His supervisor began to make comments like

“you’re too old to be doing that kind of stuff anymore” and called him “an old fart.” 

Brooks was terminated after an accident occurred during his watch. The district court granted

summary judgment to defendant because the company put forward a non-discriminatory reason:

Brooks was fired because he had not been on the job site at the moment of the accident, had failed

to conduct a job briefing on-site, and required his employees to sign a job briefing acknowledgment

after the accident. 

We reversed the district court and found that the honest belief rule

                                                  

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did not apply because the company “ha[d] not submitted any evidence that establishes the specific

facts that [the decision maker] had at the time he made the decision to terminate Brooks.” 

When coupled with the evidence of discriminatory remarks by Brooks’ supervisor, we concluded

that the honest belief rule, which requires a reasonable reliance on the particularized facts that were

before it at the time the decision was made, did not apply.

        Plaintiff analogizes his situation to Brooks and contends that the particularized facts available

to Chief Miller did not support the decision to terminate in light of his previously expressed

discriminatory animus against plaintiff. As mentioned earlier, our review of the district court’s

judgment is de novo. We agree with much of its well-reasoned opinion, particularly that plaintiff

made a prima facie showing of age-based discrimination. We part company, however, with respect

to its application of the honest belief rule. While it is true that “we do not require that the decisional

process used by the employer be optimal or that it left no stone unturned,” it must be reasonably

informed and we will not “blindly assume that an employer’s description of its reasons is honest.”

(quotations omitted). Frankly, there are a number of factors here that give

us pause about the honesty of defendants’ belief in this case. First, as recounted earlier, there is a

substantial amount of evidence that plaintiff was subjected to a number of ageist remarks; for

instance, Chief Miller discouraged him from seeking a position of greater responsibility because of

his age. Second, the fact that neither doctor present at the time of the incident giving rise to

plaintiff’s termination saw fit to mention it in his contemporaneous notes undercuts the credibility

of their subsequent declarations, which constituted an integral part of the investigation. One would

assume, for instance, that Dr. Fish would have immediately reported an action that he later

                                                    

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characterized as “entirely unnecessary and unjustified.” Plaintiff recalled the doctors telling him

that he had handled a difficult situation well, which would explain the omission of any comment in

either doctor’s contemporaneous report. Third, Chief Miller was one of the principal investigators

into the incident giving rise to plaintiff’s termination. His views about plaintiff’s age, which we

must accept as true given the procedural posture of this appeal, call into question his ability to serve

as an impartial investigator into the alleged misconduct. In short, we conclude that plaintiff has

raised sufficient issues of material fact to preclude summary judgment based upon the honest belief

rule.

                                                  III.

        The judgment of the district court is vacated and the cause remanded for further

proceedings consistent with this opinion.




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