Employers often defend against discrimination and retaliation claims by arguing that courts should not act like super human resources managers who second guess their employment decisions. A panel of the Sixth Circuit took that argument to heart in its May 8th decision in Seeger v. Cincinnati Bell Telephone Co., in which the court upheld summary judgment in favor of the employer on the ground that the employer had an "honest belief" that the plaintiff had engaged in disability fraud.

Tom Seeger was on FMLA leave for aback injury when he was spotted at the Cincinnati Oktoterfest by several of his co-workers. One of the employees contacted human resources to say at Seeger was able to walk 50 to 75 feet, seemingly unimpaired. During the employer's investigation, however, others remarked that Seeger seemed to to be in pain. The employer's investigation investigation also included an interview of Seeger and a review of his medical records, disability file and employment history. Seeger was suspended and was given an opportunity to submit a statement as well as a statement from his physician. After considering all of this information, the employer decided that Seeger's activity at Oktoberfest was inconsistent with his claimed disability and terminated him for disability fraud.

Seeger filed suit for interference with his FMLA rights and for retaliation in violation of the FMLA. With respect to the interference claim, the court concluded that Seeger had been given all of the FMLA leave he had requested since he had actually returned to full duty during the course of the investigation. With respect to the retaliation claim, the court noted the closeness in time between the FMLA leave and the termination, but concluded that CBT made a “reasonably informed and considered decision” before it terminated Seeger, and that Seeger has failed to show that CBT's decision-making process was unworthy of credence.

In reaching this conclusion, the court noted that the determinative question was not whether Seeger actually committed fraud, but whether CBT reasonably and honestly believed that he did. The court also noted that in order to take advantage of this "honest belief" defense, the employer's investigation need not leave no stone unturned. An employer's invocation of the honest belief rule, however, does not automatically shield it, because the employee must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is “too obvious to be unintentional.”

The dissent argued that the summary judgment order for the employer should be overturned because the employer focused on what it described as "flimsy evidence while ignoring strong contrary evidence." In addition, the dissent faulted the employer for not obtaining an independent medical expert opinion to process all of the information in its possession. At a minimum, the dissent contended that Seeger had presented sufficient evidence to permit a reasonable jury to conclude that the employer's investigation was so one-sided that it was unworthy of credence.

Employers should welcome the Sixth Circuit's Seeger decision, but should not get carried away. As noted, courts will not automatically rubber stamp an employer's decision unless it is supported by a thorough, well thought out investigation. In FMLA and ADA cases, I should note that human resources professionals and lawyers are particularly ill suited to make medical judgments and appropriate medical advice should be sought.