NOT RECOMMENDED FOR PUBLICATION File Name: 24a0046n.06
No. 23-3346
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 30, 2024 KELLY L. STEPHENS, Clerk ) MARILYN CROSSLEY, ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE SOUTHERN ) DISTRICT OF OHIO KETTERING ADVENTIST HEALTHCARE ) and BELINDA ISAAC, ) Defendants-Appellees. ) OPINION ) )
Before: MOORE, MURPHY, and MATHIS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge.
I. OVERVIEW
Marilyn Crossley (“Crossley”) has worked as a speech pathologist at Kettering Adventist
Healthcare (“Kettering”) since 2001. Crossley has Ehlers-Danlos syndrome (“EDS”), which
impacts her joint support; a heart condition; and multiple myeloma (a form of cancer). In 2019,
Kettering terminated Crossley’s employment after an investigation showed that she was accessing
charts for patients to whom she was not assigned, which Kettering stated was a violation both of
its policies and of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).1
42 U.S.C.A. §§ 1320d-1, 1320d-2(d)(2). Crossley sued Kettering and her supervisor, Belinda
Isaac (“Isaac”) (collectively, “the Defendants”), claiming that she was discriminated against based
1 HIPAA establishes national standards to prevent medical professionals from disclosing patient information to anyone other than the patient and the patient’s designated representatives. See 45 C.F.R. § 164.502. No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
on her age and disability, in violation of both federal and Ohio state law, and that Kettering had
failed to give her reasonable accommodations for her disability. Kettering and Isaac moved for
summary judgment, which the district court granted on all claims. Crossley timely appealed.
II. BACKGROUND
Crossley has worked as a speech pathologist since January 1976, and has been a full-time
employee at Kettering since August 2001. R. 39 (Crossley Dep. at 14, 16–17) (Page ID #289).
Crossley started out “seeing acute patients” at Kettering before becoming the “first speech
pathologist staffed for neuro rehab” when Kettering created its neuro rehab center around 2010.
Id. at 17–18 (Page ID #289–90). In her position, Crossley worked four nine-hour days, for a total
of thirty-six hours a week. Id. at 17, 60 (Page ID #289, 300). Crossley did not work on
Wednesdays, although when Kettering’s clinic hours shifted to close an hour earlier on Friday, she
added an extra hour to her Tuesday shift to continue working thirty-six hours per week. Id. at 60
(Page ID #300). Crossley has EDS, which impacts the “ligamental support of [her] joints,” a heart
condition, and multiple myeloma. Id. at 64–65 (Page ID #301).
Crossley specializes in treating patients with Bell’s palsy and certain facial tumors. Id. at
36 (Page ID #294). She took the “facial patients” in her caseload, but the schedulers did not give
her “brain injury and concussion patients . . . by decision of [Isaac].” Id. at 38 (Page ID #295).
Isaac stated that Crossley “didn’t complete the competencies” required to treat ALS, TBI, or
concussion patients. R. 43 (Isaac Dep. at 175) (Page ID #438). There were five therapists in
Crossley’s department, and Kettering’s schedulers would assign patients to them based on
openings, with some therapists (including Crossley) receiving a specific subset of patients. R. 39
(Crossley Dep. at 40) (Page ID #295).
2 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
Kettering has several workplace policies and procedures dictating employee conduct and
use of patient information. The IP-KH Using, Requesting, and Disclosing Minimum Necessary
Information (“IP-KH Minimum Necessary Info.”) policy mandates that employees access
protected health information (“PHI”) only to the minimal extent “necessary to accomplish an
individual’s job duties, functions, and/or responsibilities,” and states that unauthorized access to
this information may violate HIPAA. R. 55-3 (IP-KH Minimum Necessary Info. at 1) (Page ID
#1072). Employees are permitted to use PHI for “treatment, payment, and healthcare operations,”
including training. R. 55-4 (IP-KH Use and Disclosure of PHI at 1) (Page ID #1075). Kettering’s
IP-KHN Information Security and Privacy Violation Sanctioning Guidelines dictate how to
categorize certain HIPAA violations and how to make disciplinary decisions based on those
categories. R. 41 (Douglas Dep. at 15) (Page ID #370). If an employee accessed charts for patients
who are not theirs, Kettering leadership would investigate whether they had done so for a
legitimate business reason. Id. Whether a cited business reason was legitimate is largely up to
leadership and depends on factors like one’s role with a patient. Id. at 16–17 (Page ID #370).
Kettering also has a “progressive correction action” policy to help employees address their actions.
R. 43 (Isaac Dep. at 63–64) (Page ID #410). It lays out five different steps to take in disciplining
employees: (1) setting an action plan; (2) initial warning; (3) written warning; (4) final written
warning; (5) termination. Id. at 65 (Page ID #410); R. 49-27 (HR-KHN Conduct & Discipline at
2) (Page ID #768).
Around Crossley’s sixty-fifth birthday, in April 2017, she had a conversation with other
Kettering staff, including her manager Isaac, R. 43 (Isaac Dep. at 17) (Page ID #398), in the break
room. The group was discussing social security, and Crossley stated that she planned on working
3 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
until she was seventy years old. Id. at 91 (Page ID #417). Isaac said that she “hope[d] to retire by
that age [seventy].” Id. at 91–92 (Page ID #417). Isaac also asked Crossley whether she wanted
to retire to spend more time with her grandchildren. R. 39 (Crossley Dep. at 24) (Page ID #291).
Because of her disabilities, Crossley used the handicapped parking spaces in front of the
Kettering building. Id. at 61 (Page ID #300). In the spring of 2017, Isaac and Crossley had a
conversation about her use of the handicapped parking spaces in front of Kettering’s building.
Isaac told Crossley that “as an employee, [Crossley] had to park in the back employee lot,” which
did not have any handicapped parking spots and led into the second-floor staircase. Id. at 53 (Page
ID #298); see also R. 43 (Isaac Dep. at 99–101) (Page ID #419). Crossley stated it was impossible
for her to use this lot, because she could not climb the staircase, nor could she “walk around to the
front” to use the elevator. R. 39 (Crossley Dep. at 54) (Page ID #299). Isaac told Crossley that
she would report her to human resources if she continued to use the handicapped spots, although
Crossley continued to do so without hearing anything further about the matter. Id. at 61 (Page ID
#300). Crossley was not disciplined by Kettering for using the handicapped spaces, id. at 62 (Page
ID #301), although Isaac did issue an initial warning in March 2017 that “was upheld,” R. 43 (Isaac
Dep. at 105) (Page ID #420).
From November 2018 to March 2019, Crossley was on a leave of absence from Kettering
in order to get a stem cell transplant. R. 39 (Crossley Dep. at 65–66) (Page ID #301–02). Before
taking this leave, she had started chemotherapy for her myeloma in August 2018. She continued
to work up until November 2018 because it was a “less damaging” form of chemotherapy and her
doctor had told her she did not need to be off work. Id. at 67–69 (Page ID #302). During this
period, she did not request that Kettering make any accommodations, although Isaac wanted her
4 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
to “take off three months” while she was on chemotherapy. Id. at 70 (Page ID #303). Eventually,
Crossley applied for a leave of absence in November 2018 in order to go through with the stem
cell transplant. Id. at 72–73 (Page ID #303). She was approved for this leave of absence and did
not “encounter any resistance or opposition from Kettering” in doing so. Id. at 73–74 (Page ID
#303–04). Isaac suggested that Crossley help to “train new therapists” at some point before
Crossley took this medical leave. Id. at 31–32 (Page ID #293).
Crossley had planned, some time before her transplant, to go on the “Buckeye Cruise for
Cancer” with her family, which was scheduled for the week after her leave of absence ended. Id.
at 75 (Page ID #304). She asked Isaac if it would be a problem for her to “take that week before
[she] return[ed],” and Isaac agreed. Id. at 75–76 (Page ID #304). Soon after this conversation,
though, Isaac notified Crossley that her CPR training was expiring, and that Crossley had to update
it before she came back in order to comply with Kettering’s policies. Id. at 76 (Page ID #304).
Crossley agreed to come in “off the clock” before her cruise in order to renew her CPR training.
Id. She stated that she took the written component on her computer, but that the CPR dummy
would not “click” and was broken. Id. at 78–80 (Page ID #305). Susan Bledsoe, a social worker
at Kettering, informed Crossley that if she could not “compress the dummy,” she would need to
get a doctor’s note saying she was “unable to do that because of [her] joints.” Id. at 80 (Page ID
#305). Crossley got the note, but also requested to do the CPR training elsewhere. Id. Isaac
rejected the request because the training had to be through Kettering, although Crossley claims
that she “later heard of someone who did it elsewhere, and it was accepted.” Id. at 80–81 (Page
ID #305). At her deposition, Isaac stated that she is familiar with the employee who renewed her
CPR certification through a separate facility, but “wasn’t aware that you could” when Crossley
5 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
asked her about it. R. 43 (Isaac Dep. at 148–49) (Page ID #431). Isaac also stated in an email that
she did not believe Crossley would be able to “complete compressions,” given her EDS. Id. at
142–43 (Page ID #430). Crossley’s “preference would be to be certified,” but that after she “got
the no” from Isaac, the only other thing she did was discuss it with some of her coworkers, which
Isaac also told her not to do. R. 39 (Crossley Dep. at 91–92) (Page ID #308).
Prior to taking her November 2018 to March 2019 leave of absence, Crossley had begun
to train Kettering’s newest therapist, Spencer Ambach (“Ambach”), by having him observe her
and teaching him “[h]ow to diagnose and treat facial patients.” Id. at 42 (Page ID #296). After
Crossley returned from her leave of absence, she noticed that she “wasn’t getting any patients on
[her] schedule.” Id. at 44 (Page ID #296). She did not know if Ambach was getting the facial
patients but stated that her “schedule had a lot of openings,” which “affect[ed] productivity[] or
mean[t] that [she] would have to go home for the day.” Id. She had been told before taking her
leave that her work hours would be the same as they were when she left, id. at 99 (Page ID #310),
although Isaac had suggested “cutting back” Crossley’s hours for her first few weeks back, which
Crossley agreed to, id. at 105 (Page ID #311). Isaac stated that she had some concerns about
Crossley coming back full-time, because Crossley had told her that she was keeping herself in
isolation and her lack of immunity was “wiping her out.” R. 43 (Isaac Dep. at 134) (Page ID
#428); see also R. 49-10 (Isaac Feb. 6, 2019 Email) (Page ID #710) (discussing Crossley’s return
to the office and noting that Crossley “was still having some issues caused by the transplant wiping
out her immunity”).
During her first two weeks back at Kettering, Crossley did not receive enough patients to
make “productive time,” and because she was out of paid time off (“PTO”) (which Kettering
6 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
therapists were supposed to use when this happened), she did not get paid. R. 39 (Crossley Dep.
at 107) (Page ID #312). Part of the issue with Crossley’s scheduling was that, because she received
an exemption for CPR training, Kettering needed to have backup and coverage by someone with
the CPR certification to be working at the same time as Crossley. Id. at 95 (Page ID #309).
Sometime shortly after Crossley’s first two weeks back, her “hours increased to a full-time
schedule,” and she began working an extra hour on Tuesday, during which two other therapists
(who were CPR-certified) worked. Id. at 112 (Page ID #313). At one point, Isaac asked Crossley
if she would add hours on Wednesday to make up the missing hour from Fridays, but Crossley
declined, because she was used to having Wednesdays for “medical appointments, chemo, a
break.” Id. at 113–14 (Page ID #313–14). Isaac then offered to have Crossley start working part-
time, given that Kettering either needed to have someone who was CPR certified in the clinic at
the same time as Crossley or have her cut her hours. Id. at 115 (Page ID #314). Crossley “felt like
[Isaac] wanted her to be part time instead of full time.” Id. at 118 (Page ID #315).
Crossley’s lack of patients became a problem for her in July 2019, and she emailed Isaac,
Megan Douglas (“Douglas”), an HR leadership partner, and Deb McConnell (“McConnell”), her
office manager, about not having enough patients on her schedule. Id. at 151–53 (Page ID #323).
Crossley had access to Kettering’s scheduler window in her computer, which permitted her to
“access all the charts” to see patients’ evaluations and which therapist the doctor had ordered. Id.
at 161–62 (Page ID #325–26). When Crossley checked the other therapists’ schedules, she saw
that they had more patients than she did. Id. at 160 (Page ID #325). At her deposition, she stated
that other than checking the window for scheduling and charting purposes, which she deemed
“appropriate patient care,” teaching would be the only other reason for clicking on a patient’s name
7 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
that would not be a HIPAA violation. Id. at 167–68 (Page ID #327). Crossley stated that she
accessed the window only for scheduling purposes. Id. at 173 (Page ID #328). On July 29, 2019,
McConnell told Crossley that she could not look at the charts, which Crossley did not think was a
correct interpretation of Kettering policies. Id. at 178 (Page ID #330). Isaac stated that Crossley
had been “told on three separate occasions” prior to August 8, 2019 that accessing charts that were
not for her own patients was a HIPAA violation, R. 43 (Isaac Dep. at 178–79) (Page ID #439),
although Isaac was not aware of any written communications to Crossley notifying her that
checking charts for these scheduling purposes violated HIPAA, id. at 181 (Page ID #439).
Crossley did not change her practices after McConnell spoke with her, believing that
HIPAA permitted her to look at the patient charts for scheduling purposes. R. 39 (Crossley Dep.
at 179, 181) (Page ID #330). Douglas reached out to Megan Sheldon (“Sheldon”)2 and Audra
Barkley (“Barkley”), members of Kettering’s corporate integrity department, about Isaac’s
concerns that Crossley was accessing patient charts that were not hers. R. 43 (Isaac Dep. at 183)
(Page ID #440). The corporate integrity department ran the reports of Crossley’s chart access, and
Isaac determined which patients were assigned to Crossley and which reports belonged to other
therapists’ patients. Id. at 185 (Page ID #440). On August 12, Douglas emailed Isaac, Sheldon,
and Barkley that Crossley had accessed forty-seven charts that “she did not have business dealings
in,” and that Douglas believed this was a “Category 3 violation.”3 Id. at 188–89 (Page ID #441).
At this point, they had not yet had a conversation with Crossley. Id. at 190 (Page ID #442).
2 During Crossley’s employment, Sheldon’s last name was “Brickner,” which also appears in the record. 3 A “Category 3” violation is considered a “[d]eliberate or purposeful violation [of policies] without harmful intent.” R. 49-27 (IP-KHN Info. Sec. & Privacy Violation Sanctioning Guidelines at 2) (Page ID #765). Although Kettering has a progressive disciplinary plan in place, it may also skip steps depending on the nature of the offense. Id. (HR-KHN Conduct & Discipline at 3) (Page ID #769).
8 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
On August 15, Douglas and Isaac met with Crossley and went through some of the
examples of Crossley accessing patients’ charts. R. 41 (Douglas Dep. at 46–47) (Page ID #378).
Douglas and Isaac noted that “quite a few” of Crossley’s proffered reasons for her doing so were
“not business reasons for being in the charts,” like wanting to know why a patient was assigned to
a different therapist or how patients were doing. Id. Crossley also told them that “she believed
some of the access was recorded by a screen shot that would open on the screen when you opened
Epic [the scheduling software].” R. 43 (Isaac Dep. at 191) (Page ID #442). Crossley also
communicated during the meeting that “she thought what she was doing was permissible,” and
Isaac and Douglas informed her that it was not. Id. at 194 (Page ID #443). Isaac confirmed that
training was a permissible reason to access records and that Crossley was not actively training
anyone, but stated that if Ambach had requested input, Crossley was permitted to give it. Id. at
194–95 (Page ID #443). Isaac stated that after the August 15 meeting, at which they had found
Crossley’s proffered business reasons unsatisfactory, they believed Crossley had committed a
terminable offense, but decided to give her the benefit of the doubt and see if she continued to
check other patients’ charts. Id. at 208 (Page ID #446); see also R. 41 (Douglas Dep. at 66–67)
(Page ID #383). When they audited Crossley’s records access a few days later, they found that
she had accessed three of Ambach’s patients’ charts since the August 15 meeting. R. 43 (Isaac
Dep. at 211) (Page ID #447).
Crossley stated that after the August 15 meeting, the only other time she accessed charts
for patients that were not hers was when Ambach asked her for help with one of his patients, and
she pulled up the chart “for teaching purposes,” because she “couldn’t help him if [she] didn’t
know a thing about the patient.” R. 39 (Crossley Dep. at 182–83) (Page ID #331). Ambach denied
9 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
that he had worked or consulted with Crossley on those patients, R. 43 (Isaac Dep. at 211) (Page
ID #447), and no one verified or checked this with Crossley, id. at 226 (Page ID #451). On August
20, Kettering fired Crossley. Isaac confirmed that Crossley’s response to McConnell on July 29
indicated she did not think her accessing the charts was inappropriate, and that between then and
the August 15 meeting, no one notified her in writing that her conduct was a serious offense and
had to stop. Id. at 224–25 (Page ID #450). During the August 15 meeting, Crossley viewed Isaac
as searching for information to use to fire her and stated that Douglas was “accusatory” and treating
her like she had acted criminally. R. 39 (Crossley Dep. at 198) (Page ID #335). Douglas and Isaac
cited her accessing Ambach’s patients’ charts, told her she had violated HIPAA after being warned,
and informed her on August 20 that she was terminated. Id. at 210 (Page ID #338). Isaac stated
the decision to fire Crossley was based on Crossley violating “[Kettering’s] corporate integrity
compliance code of conduct, [Kettering’s] information security and privacy violation sanctioning
guidelines, [Kettering’s] conduct and discipline policy, and [Kettering’s] standards of behavior
policy.” R. 43 (Isaac Dep. at 229–30) (Page ID #451–52).
Until she was fired, Crossley was regularly rated a “solid performer” on her evaluations.
Id. at 41–56 (Page ID #404–08). When making the decision to fire Crossley, Isaac confirmed that
they did not consider: whether “corrective actions” had been previously taken with regards to
Crossley’s accessing charts, “exceptional solid or low performance discussions,” “previous
performance evaluations,” overall work history with Kettering, or whether Crossley was in an
introductory or disciplinary period, but instead they based the termination on “the activity itself.”
Id. at 218–21 (Page ID #449). Two years after Crossley’s termination, Kettering had not hired
someone else to fill her position, although they were “actively looking.” Id. at 227 (Page ID #451).
10 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
Crossley also received two text messages from Kettering in 2022, inquiring as to whether she had
interest in rejoining Kettering. R. 61-1 (Crossley Aff. at 3) (Page ID #1183).
Crossley sued the Defendants after they terminated her, claiming they had discriminated
against her on the basis of her age and her disability, in violation of federal and Ohio law. She
brought a total of five claims: (1) disability discrimination under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101–12213; (2) disability discrimination under the Ohio Revised
Code § 4112.02 (“Ohio Rev. Code”); (3) failure to provide a reasonable accommodation under the
ADA, 42 U.S.C. §§ 12101–12213; (4) age discrimination under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623; and (5) age discrimination under Ohio Rev. Code
§ 4112.02. R. 1 (Compl. at ¶¶ 31–71) (Page ID #7–12). The Defendants filed a motion for
summary judgment on all of Crossley’s claims, R. 58 (Def. Mot. Summ. J. at 1) (Page ID #1091),
which the district court granted. Crossley v. Kettering Adventist Healthcare, No. 3:20-cv-319,
2023 WL 2573428, at *10 (S.D. Ohio Mar. 20, 2023). Crossley timely appealed.
III. ANALYSIS
We review de novo a district court’s grant of summary judgment. Piersen v.
Quad/Graphics Printing Corp., 749 F.3d 530, 535–36 (6th Cir. 2014). Affirming the district
court’s decision is appropriate when “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
reaching our conclusion, “[o]ur ultimate question is ‘whether reasonable jurors could find by a
preponderance of the evidence that [Crossley, as the nonmoving party] is entitled to a verdict.’”
Willard v. Huntington Ford, Inc., 952 F.3d 795, 805–06 (6th Cir. 2020) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). We view all the facts and draw inferences in the
11 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
light most favorable to the non-moving party. Anderson, 477 U.S. at 255. The Ohio Supreme
Court has held that the ADA is similar to Ohio’s discrimination law, such that it “can look to
regulations and cases interpreting the federal Act for guidance in [its] interpretation of Ohio law.”
Columbus Civ. Serv. Comm’n v. McGlone, 697 N.E.2d 204, 206–07 (Ohio 1998); see also
Carnahan v. Morton Bldgs., Inc., 41 N.E.3d 239, 242–43 (Ohio Ct. App. 2015). Similarly, we
have held that age-discrimination claims under Ohio law are analyzed under the same standards as
federal ADEA claims. See Blizzard v. Marion Tech. Coll., 698 F.3d 275, 282−83 (6th Cir. 2012);
see also Moffat v. Wal-Mart Stores, Inc., 624 F. App’x 341, 345 (6th Cir. 2015) (per curiam).
On appeal, Crossley argues that the district court erred in summarily dismissing evidence
that Kettering had invited her to reapply for her position; in applying the honest belief doctrine;
and in finding that Crossley had not sufficiently established that the Defendants had acted
pretextually. We address each of her claims below.
A. Invitation to Reapply
The ADA dictates that “[n]o covered entity shall discriminate against a qualified individual
on the basis of disability in regard to . . . [the] discharge of employees.” 42 U.S.C. § 12112(a).
The ADEA dictates that “[i]t shall be unlawful for an employer” to “discharge any individual . . .
because of such individual’s age.” 29 U.S.C. § 623(a)(1). When a plaintiff seeks to prove
disability or age discrimination through indirect, rather than direct, evidence, we employ the
McDonnell Douglas burden-shifting framework. Talley v. Fam. Dollar Stores of Ohio, Inc., 542
F.3d 1099, 1105 (6th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
04 (1973)); see Blizzard, 698 F.3d at 283. First, a plaintiff must make out a prima facie case that
she was discriminated against. In the ADA context, she can make out this prima facie case by
12 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
showing that “(1) [] she is disabled, (2) [] she is otherwise qualified for the position, with or without
reasonable accommodation, (3) [] she suffered an adverse employment action, (4) the employer
knew or had reason to know of the plaintiff’s disability, and (5) the position remained open while
the employer sought other applicants or the disabled individual was replaced.” Babb v. Maryville
Anesthesiologists P.C., 942 F.3d 308, 320 (6th Cir. 2019) (quoting Ferrari v. Ford Motor Co., 826
F.3d 885, 891–92 (6th Cir. 2016)). In the ADEA context, she can make out this prima facie case
“by showing: (1) she was at least 40 years old at the time of the alleged discrimination; (2) she
was subjected to an adverse employment action; (3) she was otherwise qualified for the position;
and (4) she was replaced by a younger worker, or there are circumstances that support an inference
of discrimination.” Moffat, 624 F. App’x at 346.
Once the plaintiff makes out a prima facie case under either law, the burden shifts to the
defendant to proffer a nondiscriminatory reason for their taking the adverse action. Willard, 952
F.3d at 810. Neither the plaintiff’s nor the defendant’s burden is particularly onerous at this point.
Id.; see also Babb, 942 F.3d at 320. If the defendant articulates a nondiscriminatory reason, the
burden returns to the plaintiff to show that the defendant’s rationale is pretextual and “that [the
plaintiff] can meet [her] burden of persuasion.” Willard, 952 F.3d at 810; see also Babb, 942 F.3d
at 320 (explaining that the employee must prove a genuine issue of fact as to whether the
employer’s proffered rationale is pretextual). Plaintiffs can establish pretext by demonstrating that
the defendant’s reason: “(1) has no basis in fact, (2) did not actually motivate the defendant’s
challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Carter v. Univ. of
Toledo, 349 F.3d 269, 274 (6th Cir. 2003) (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 463
(6th Cir. 2003)).
13 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
We assume arguendo, as the district court did below, Crossley, 2023 WL 2573428, at *6,
that Crossley has met her light burden of establishing a prima facie case of disability and age
discrimination, cf. Willard, 952 F.3d at 808. The Defendants’ proffered rationale for firing
Crossley, that she “knowingly and intentionally violated multiple policies applicable to her
employment,” Appellee Br. at 38, is nondiscriminatory. Our analysis focuses on whether Crossley
has sufficiently shown that this cited reason for her termination is pretextual.
Crossley argued in her opposition to summary judgment and argues on appeal that
Kettering’s texts inviting her to reapply (nearly three years after her termination) show pretext
because if Crossley’s actions were as egregious as Kettering alleged, seeking to reemploy her
would not make sense. R. 61 (Pl.’s Mem. Contra Defs.’ Mot. for Summ. J. at 30) (Page ID #1178);
Appellant Br. at 17–19. The district court found that Crossley had forfeited the argument by failing
sufficiently to explain how the text messages evinced discriminatory animus. Crossley, 2023 WL
2573428, at *8 n.3 (citing McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)). A plaintiff
forfeits an argument when they only “advert[] to [it] in a perfunctory manner, unaccompanied by
some effort at developed argumentation.” McPherson, 125 F.3d at 995–96. Crossley only briefly
claims, without discussing any caselaw or other supporting authorities, that Kettering must have
acted pretextually because it otherwise would not have sent the recruiting texts nearly three years
after she was terminated. Appellant Br. at 18–19. Although this argument is not extensively
developed, it is not quite so perfunctory that our precedent deems it forfeited. Cf. Engler v. Arnold,
862 F.3d 571, 577 (6th Cir. 2017) (upholding a district court’s determination that a plaintiff had
forfeited an argument when they made “only [a] conclusory statement”).
14 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
Here, though, the text messages do not present a genuine dispute of material fact.
Kettering’s policies do not indicate, nor does Crossley appear to allege anywhere, that Crossley’s
disciplinary record, R. 50-10 (Crossley Disciplinary File) (Page ID #949), remained in her file
after her termination. See R. 49-27 (HR-KHN Conduct & Discipline at 3) (Page ID #769) (stating
only that “[disciplinary] forms remain in [an] employee’s file during their entire tenure with the
organization”). Without anything more to indicate that the individuals involved in sending
Crossley the recruiting messages in 2022 knew the reason for her termination in 2019 and deemed
it a non-issue, these messages cannot be used to demonstrate pretext.
Even if Crossley’s disciplinary record were still in her file at the time Kettering sent the
text messages, Crossley still does not sufficiently carry her burden of persuasion in arguing that
the messages show pretext. She merely states that, given the fact that Kettering “terminated [her]
and escorted her out of the building,” Appellant Br. at 19, the recruiting texts must demonstrate
that Kettering did not actually think that her “conduct warranted termination,” id. We do not
always require plaintiffs to provide “additional, independent evidence of discrimination,” Griffin
v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 149 (2000)), and at the summary-judgment stage, plaintiffs need only rebut,
not disprove, a proffered reason. Id. Here, though, Crossley seems to allege that the texts cannot
mean anything other than that Kettering’s proffered rationale is pretextual, without sufficiently
connecting them to any alleged discriminatory animus. In making her argument, she does not
engage with the lack of a temporal proximity between the two events, cf. Clay v. United States
Parcel Serv., Inc., 501 F.3d 695, 718 (6th Cir. 2007), or the fact that Kettering had been struggling
to fill her position since she was fired, R. 43 (Isaac Dep. at 227) (Page ID #451). Based on the
15 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
evidence at this point, which appears to merely be the existence of the texts themselves, a
reasonable jury could not find in favor of Crossley’s argument that the texts establish pretext.
B. The Honest Belief Doctrine
Crossley also argues that the district court erred when it applied the honest belief doctrine
in dismissing other independent bases she put forth to demonstrate pretext. Appellant Br. at 20–
25. Under our honest belief doctrine, “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.’” Wright
v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (quoting Smith v. Chrysler Corp., 155
F.3d 799, 806–07 (6th Cir. 1998)). If a plaintiff seeks to prove pretext by challenging the
motivation behind an investigation or termination, as Crossley does here, Appellant Br. at 20, they
must “‘admit[] the factual basis underlying the employer’s proffered explanation and further
admit[] that such conduct could motivate dismissal.’” Blizzard, 698 F.3d at 287 n.6 (quoting
Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012)). The Defendants argue that
because Crossley is challenging the factual basis of her termination, the district court did not err
in applying the honest belief doctrine. Appellee Br. at 41–42.
Crossley cites our decision in Babb to support her claim that the honest belief doctrine
should not apply to her case because she is actually challenging the Defendants’ motivation behind
terminating her. Appellant Br. at 20–21. In Babb, we declined to apply the honest belief doctrine
in the case of an employee who had a degenerative eye condition and had been fired from her
position as a Certified Registered Nurse Anesthetist for committing “clinical errors.” 942 F.3d at
311. We distinguished between cases “where the employee advanced a ‘bare assertion’ that the
16 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
facts the employer relied on in firing them were wrong or overstated,” id. at 323, and instances
where the employee is challenging “the likelihood that a reasonable [employer] would have
actually relied on those facts to fire an experienced [employee],” id. Challenges to the factual
basis of a termination can be decided under the honest belief doctrine, whereas claims that an
employer failed to make a reasonable decision in taking adverse action can overcome the rule. Id.
Crossley argues that her looking at the charts was not actually the reason that the
Defendants fired her, Appellant Br. at 20, but she also maintains throughout that her looking at
other therapists’ charts did not violate HIPAA, id. at 22. In doing so, Crossley challenges the basis
of her termination. For her case to be analogous to our decision in Babb, though, she would have
to concede that her actions could have violated HIPAA—which Kettering has consistently cited
as its reason for firing Crossley, cf. Babb, 942 F.3d at 323—and argue that even if they had, her
conduct was not why the Defendants decided to terminate her, id.; see also Blizzard, 698 F.3d at
287 n.6. Crossley’s case far more resembles our decision in Tingle v. Arbors at Hilliard, 692 F.3d
523, 530–31 (6th Cir. 2012), in which we applied the honest belief doctrine when an employee
claimed that she was “not guilty of the conduct that led to . . . her ultimate termination,” than it
does Babb.
Further, in Babb, we held that the employee was able overcome the honest belief rule
because she could point to “evidence that ‘[her] employer failed to make a reasonably informed
and considered decision before taking its adverse employment action.’” 942 F.3d at 322–23
(quoting Smith, 155 F.3d at 807–08). On the same day of the employee’s termination, Babb’s
employer had sent around an email explicitly stating that she had been fired because of the
difficulties that her disability posed to her ability to perform her job. Id. at 323. The employee
17 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
also had expert testimony that the “clinical errors” her employer cited as the cause for termination
were “in accordance with local [] standards.” Id. at 322. Here, Crossley argues that her actions
did not violate HIPAA and that the Defendants did not cite a specific hospital policy when she
tried to dispute this to them, Appellant Br. at 21–22, and that the Defendants’ investigation was a
“sham,” id. at 23–25. Neither of these arguments creates a genuine factual dispute about whether
the Defendants had acted unreasonably in terminating her. See Babb, 942 F.3d at 322–23.
Even if we presume that Crossley is correct, and that her actions ultimately did not violate
HIPAA, she does not advance any evidence that could cause a reasonable juror to believe that her
looking at the charts was not the Defendants’ motivation for her termination. Unlike the plaintiff
in Babb, Crossley does not have a “smoking gun” email, cf. Babb, 942 F.3d at 323, nor is there
anything in the record indicating that a reasonable employer would not view accessing other
therapists’ charts as a HIPAA violation. We have previously stated that it is not unreasonable for
a hospital to rely on perceived violations of patient privacy in deciding to terminate an employee.
Cf. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 399 (6th Cir. 2008) (rejecting a claim that a
hospital had acted pretextually in firing employees for violating HIPAA, even when the hospital’s
policies were ambiguous, and noting that patient privacy “is of paramount concern to healthcare
providers”).
Crossley also does not provide adequate support for her argument that the honest belief
doctrine could not be applied because the Defendants’ decision to terminate her was based on a
sham investigation. Appellant Br. at 25. She cites parts of both Isaac’s and Douglas’s testimony,
in which each was discussing their treatment of the reports of Crossley’s chart access and their
August 15 meeting, but she does not explain how these exchanges support her claim that the
18 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
investigation was pretextual. Id.; see also R. 41 (Douglas Dep. at 58–65) (Page ID #381–82); R.
43 (Isaac Dep. at 182–97) (Page ID #440–43). Crossley also alleges that the court can infer pretext,
because she was not involved in the investigation at all. Appellant Br. at 25. However, the record
shows that she was questioned about her accessing the charts during the August 15 meeting and
was given an opportunity to explain what her legitimate business reasons were for doing so, and
that the Defendants gave her another chance before deciding to terminate her. R. 43 (Isaac Dep.
at 208) (Page ID #446); see also R. 41 (Douglas Dep. at 66–67) (Page ID #383).
Because Crossley does not point to evidence that would create a genuine dispute of material
fact over whether the Defendants’ decision to terminate her was actually based on perceived
HIPAA violations, our decision in Babb does not support her claim that the honest belief doctrine
cannot be applied to her case. The district court did not err in applying the honest belief doctrine
to Crossley’s attempts to establish pretext, nor in concluding that the Defendants had an honest
belief that Crossley had committed a terminable offense. Here, no one disputes that Crossley
accessed charts that were not her patients’ charts. Appellant Br. at 22. The Defendants relied on
this access to find that Crossley had violated HIPAA and Kettering’s policies. Even if Crossley’s
actions were ultimately permissible under HIPAA, the Defendants’ decision appears “reasonably
informed and considered,” Smith, 155 F.3d at 807, and Crossley does not point to evidence
indicating that they committed an error “too obvious to be unintentional,” id. at 808.
C. Inconsistent Reasons and Discriminatory Comments
Crossley also argues on appeal that she carried her burden to show that the Defendants’
proffered reason for firing her was pretextual, based both on the Defendants’ “conflicting and
19 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
inconsistent reasons” for firing her and on their making “discriminatory comments about
[Crossley’s] age.” Appellant Br. at 25–30.
Inconsistent rationales can call a justification’s credibility into question. See Cicero v.
Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002). The record in this case, though, does
not indicate that the Defendants shifted their rationale for terminating Crossley so much as to create
a genuine dispute of material fact. The main crux of the Defendants’ concern throughout the
investigation was that Crossley had violated HIPAA by accessing charts for patients whom she
was not treating. See R. 41 (Douglas Dep. at 67) (Page ID #383); R. 43 (Isaac Dep. at 228) (Page
ID #451); R. 55 (Sheldon Dep. at 19–21) (Page ID #1058). The district court did not err in finding
that the fact that various actors cited different privacy policies throughout Crossley’s termination
process was insufficient to establish pretext.
Next, Crossley claims that Isaac made discriminatory comments about her that betrayed
Isaac’s “discriminatory animus and tainted” the investigation into her actions. She cites Isaac’s:
(1) suggesting that Crossley retire; (2) expressing doubt that Crossley could do her job in light of
her disabilities; (3) insisting that Crossley “take a leave of absence to treat her disability”; and (4)
becoming “upset” upon learning “that [Crossley] was entitled to disabled parking.” Appellant Br.
at 27. In evaluating the probative value of alleged discriminatory comments, we look at “the
declarant’s position in the [employer’s] hierarchy, the purpose and content of the statement, [] the
temporal connection between the statement and the challenged employment action, [and] whether
the statement buttresses other evidence of pretext.” Risch v. Royal Oak Police Dep’t, 581 F.3d
383, 393 (6th Cir. 2009) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 357
(6th Cir. 1998)).
20 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
Isaac was Crossley’s supervisor and superior within Kettering’s hierarchy. None of Isaac’s
statements, however, create a genuine dispute of fact with regard to discriminatory animus. As to
the first instance, Crossley cites her conversation with Isaac in 2017, in which Isaac had stated that
she hoped that she (Isaac) was retired by seventy after Crossley said that she (Crossley) intended
to work until she was seventy. R. 43 (Isaac Dep. at 91–92) (Page ID #417). This conversation in
the workplace breakroom occurred two years prior to Crossley’s termination, and Crossley does
not point to any other conversations that indicate that Isaac repeated these sentiments to her again.
The content of the conversation, in this specific context, appears aimed at making (albeit
misguided) conversation with a fellow co-worker, and does not indicate that Isaac’s purpose in
making these statements was to encourage Crossley to retire. Because of the lack of a temporal
connection between this conversation and Crossley’s termination, coupled with the conversation’s
content, purpose, and lack of additional buttressing statements, a reasonable jury could not find
that it reflected a discriminatory animus based on Crossley’s age.
Second, Crossley cites Isaac’s concerns about Crossley’s ability to do her job in light of
her disabilities, and Isaac’s encouraging Crossley to take a leave of absence to treat her disability.
Appellant Br. at 27, 30. In context, Isaac’s statements encouraging Crossley to take time off during
her chemotherapy around August 2018 (about a year before Crossley was fired) and reflecting
Isaac’s hesitation about Crossley returning to work soon after undergoing the stem cell transplant
in February 2019 also do not raise a genuine factual dispute regarding discriminatory animus. The
content does not appear to be aimed at encouraging Crossley to retire permanently from her
position with Kettering. Further, isolated statements expressing concern for an employee who is
actively going through chemotherapy or experiencing suppressed immunity while working in a
21 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
healthcare setting do not reflect discriminatory animus on their own. Similarly, Isaac’s concern
about Crossley being able to perform her job without her CPR certification does not sufficiently
demonstrate impermissible discriminatory animus against Crossley, given that even Crossley
stated that it is good policy to have a CPR-certified therapist on site. R. 39 (Crossley Dep. at 115)
(Page ID #314).
Finally, Crossley cites Isaac’s reprimanding her about using the handicapped spot as
evidence of discriminatory animus. Isaac states that she did not know Crossley had a handicap
placard when approaching her about it; after the initial interaction, Isaac never brought it up again
and Crossley continued to use the space. Id. at 61–62 (Page ID #300–01). Overall, given the
context of these statements, the district court did not err in finding that they did not rise to the level
of demonstrating discriminatory animus.
D. Reasonable Accommodation
The Defendants also argue on appeal that Crossley does not make any argument regarding
the sufficiency of Kettering’s reasonable accommodations and has therefore forfeited the claim.
Crossley’s brief does not contain any challenge to the adequacy of the reasonable accommodations
that Kettering provided, and we hold that Crossley has forfeited this argument. See McPherson,
125 F.3d at 995–96. Even if Crossley did not forfeit this argument, however, the accommodations
Kettering offered to Crossley were sufficient under the ADA. Given Kettering’s need to have a
CPR-certified therapist on site, Isaac offered for Crossley to take some hours on Wednesdays,
which Crossley did not want, or move to part-time hours, which Crossley agreed to. This satisfies
the ADA’s definition of “reasonable accommodations.” See 42 U.S.C. § 12111(9)(B) (including
22 No. 23-3346, Crossley v. Kettering Adventist Healthcare et al.
offering “part-time or modified work schedules” in the definition of “reasonable
accommodations”).
IV. CONCLUSION
We AFFIRM the district court’s judgment.