James Davis v. Marshall County Ambulance Serv.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0663n.06
No. 12-6480 FILED
Jul 17, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
JAMES MIKE DAVIS, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
MARSHALL COUNTY AMBULANCE ) COURT FOR THE MIDDLE
SERVICES, ) DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
BEFORE: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, District Judge.*
PER CURIAM. James Mike Davis appeals the district court’s grant of summary judgment
in favor of his former employer on his age-discrimination and retaliatory-discharge claims. As set
forth below, we affirm.
Davis worked for the Marshall County Emergency Medical Services (MCEMS) as an
emergency medical technician until his termination for absenteeism. In his complaint, Davis claimed
that MCEMS terminated him: (1) for not working while contagious with the flu in violation of
Tennessee public policy; (2) without providing proper notice or a hearing in violation of his due-
process rights; (3) because of his age in violation of the Tennessee Human Rights Act; and (4) in
*
The Honorable Sandra S. Beckwith, United States District Judge for the Southern District
of Ohio, sitting by designation.
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Davis v. Marshall Cnty. Ambulance Servs.
retaliation for refusing to work while contagious. The district court granted MCEMS’s motion for
summary judgment on Davis’s claims.
Davis appeals the district court’s grant of summary judgment in favor of MCEMS on his age-
discrimination and retaliatory-discharge claims. We review the district court’s decision to grant
summary judgment de novo. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012).
Summary judgment is appropriate “if 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).
The district court concluded that Davis, who was forty-nine years old at the time of his
termination, made a prima facie showing of age discrimination but failed to demonstrate that
MCEMS’s reason for his termination – absenteeism – was a pretext for age discrimination. Davis
asserted that a younger employee, Alicia Jones, had worse or comparable attendance issues and was
not fired. Jones had been reprimanded and suspended for her absenteeism, like Davis, but resigned
prior to incurring another unexcused absence.
In order to establish that another employee was similarly situated, “the plaintiff and the
employee with whom the plaintiff seeks to compare himself or herself must be similar in all of the
relevant aspects.” Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 378-79 (6th Cir. 2002)
(quotations and citations omitted). Jones and Davis were not similarly situated in at least one
relevant aspect: they reported to different supervisors. See Mitchell v. Toledo Hosp., 964 F.2d 577,
583 (6th Cir. 1992) (“[T]o be deemed ‘similarly-situated’, the individuals with whom the plaintiff
seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to
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Davis v. Marshall Cnty. Ambulance Servs.
the same standards and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.”).
Moreover, Davis’s own testimony further undercuts any conclusion that MCEMS’s reason
for dismissing him was pretextual. In his deposition, Davis was asked whether any supervisor ever
made a statement about age that would have indicated that age was a reason for his dismissal. He
responded, “None that I can remember. It was more or less just, you know, me trying to figure out
what was going on and just a personal assumption.” R. 22, Plaintiff’s Dep. at 151, Page Id. #113.
Accordingly, the district court properly granted summary judgment on Davis’s age-discrimination
claim.
The district court also properly held that Davis’s retaliatory-discharge claim lacked merit.
MCEMS is immune from liability for common-law retaliatory discharge under Tennessee
Governmental Tort Liability Act. See Tenn. Code Ann. § 29-20-201(a); Baines v. Wilson Cnty., 86
S.W.3d 575, 579 (Tenn. Ct. App. 2002) (holding that county emergency-management agency was
immune from common-law retaliatory-discharge suit). Even if MCEMS were not immune, Davis
failed to establish a prima facie case of retaliatory discharge under Tennessee common law.
Establishing such a claim requires in part that the plaintiff show that “the reason for the discharge
was that [he] attempted to exercise a statutory or constitutional right, or for any other reason which
violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory
provision.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002).
Davis’s complaint asserted that he engaged in a protected activity “[b]y refusing to work
while contagious” with the flu. But he did not cite any statutory or regulatory authority establishing
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Davis v. Marshall Cnty. Ambulance Servs.
that refusing to work when contagious was a protected activity or that it was against public policy
to discharge someone for undertaking such an activity. In his response to MCEMS’s motion for
summary judgment, Davis erroneously relies on the Tennessee Public Protection Act. That statute
prohibits an employee’s discharge or termination “solely for refusing to participate in, or for refusing
to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b). Davis submitted no other
evidence in support of his claim that he engaged in protected activity. He has therefore failed to
show that his refusal to work while contagious with the flu was also a refusal “to participate in, or
. . . remain silent about, illegal activities” and that his decision to stay home from work was thereby
protected under § 50-1-304(b).
For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor
of MCEMS.
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