Robin Allen MORRIS, Plaintiff-Appellant, v. FAMILY DOLLAR STORES OF OHIO, INC., Defendant-Appellee.
No. 07-3417.
United States Court of Appeals, Sixth Circuit.
March 31, 2009.
332 Fed. Appx. 332
Before: GIBBONS and SUTTON, Circuit Judges; and ACKERMAN, District Judge.
On these facts, the Court is convinced that under the first prong of the Hadix test, KIC was reasonable in hiring WFW.
Citizens, 2007 WL 2902213, at 5-6, 2007 U.S. Dist. LEXIS 73201, at *17. (internal citations omitted). In reaching this conclusion, the district court also relied on the Fourth Circuit‘s opinion in Colonial Williamsburg Found. v. Kittinger Co., 38 F.3d 133, 139 (4th Cir.1994), which affirmed a district court‘s award of attorneys’ fees for non-local counsel because the non-local counsel had served as the party‘s attorney “for almost ten years” and had drafted the agreement in question. The district court then considered the second prong of the Hadix test and concluded that WFW‘s fees were reasonable in light of its attorneys’ skill, experience and reputation. Citizens, 2007 WL 2902213, at *5-6, 2007 U.S. Dist. LEXIS 73201, at *17-18. Having carefully considered and applied the Hadix test, it is clear that the district court did not abuse its discretion in awarding attorneys’ fees for the legal work done by WFW.
As for its second claim that much of the legal work was duplicative or excessive, Graceland Fruit provides little detail in its brief as to exactly which portions of the work in question it finds problematic. In contrast, KIC‘s counsel provided records and invoices detailing the work completed on behalf of KIC, thus satisfying the requirement to “maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Despite the fact that an extremely large sum of fees of over $400,000 was awarded in this case, we cannot say that such an amount was unreasonable given the nearly $800,000 worth of damages claimed by Graceland Fruit in its complaint and given the fact that Graceland Fruit chose its litigation strategy of alleging poor quality oil for not just the third shipment, but all three shipments.
In sum, the district court carefully reviewed the reasonableness of KIC‘s motion for attorneys’ fees and applied the correct legal standards to the facts at hand. It thus did not abuse its discretion in granting KIC‘s motion for attorneys’ fees because it did not apply the wrong standard, misapply the correct standard, or rely upon clearly erroneous findings of fact.
V.
For the foregoing reasons, we affirm the district court‘s award of attorneys’ fees to KIC.
Plaintiff-appellant Robin Allen Morris appeals the district court‘s grant of summary judgment in favor of defendant-appellee Family Dollar Stores of Ohio, Inc. (“Family Dollar“). After Morris was terminated from Family Dollar, he filed a complaint against Family Dollar alleging: (1) violation of the Family Medical Leave Act (“FMLA“); (2) violations of Title VII of the Civil Rights Act of 1964 (“Title VII“) and Chapter 4112 of the Ohio Revised Code; and (3) violation of Ohio public policy. Morris argues that the district court erred by granting summary judgment on all three claims to Family Dollar. For the reasons that follow, we affirm the judgment of the district court.
I.
Morris, a white male, was hired by Family Dollar in December of 2001.1 After six months as a Stock Associate, he was promoted to Assistant Store Manager. In December of 2002, he was promoted to Store Manager by District Manager Juan Melendez. Morris served as Store Manager in several Family Dollar stores in the Cleveland, Ohio area before becoming the Store Manager at the West 73rd and Detroit Road store (“the Detroit Road Store” or “the store“) in August or September of 2003.2
Ron Sheppard, a white male, was the Regional Manager during Morris‘s tenure as Store Manager. Rob Kozak was the District Manager for Family Dollar when Morris began working as manager of the Detroit Road Store.3 Kozak is white. Melendez, an Hispanic male, took over as District Manager sometime during the summer of 2004. Paul Schnepp was the Assistant District Manager at this time. There was no evidence presented as to Schnepp‘s race or national origin. The two Assistant Store Managers at the Detroit Road Store, Mariely Capestany and Carlos Lozado, are both Hispanic.
Sometime around mid-October 2004, Morris asked Melendez for one week of vacation beginning on October 29. Morris testified that Melendez approved the vacation, but “had some other negative things to say,” including “cussing” at Morris like a “freaking maniac.” (Morris Depo. at 91-97.) Morris also indicated that he contacted Human Resources regarding this incident and that Melendez later apologized. Melendez testified that he did not speak directly with Morris but that he heard about Morris‘s request from Schnepp. Whether through Morris directly or through Schnepp, Melendez was informed that Morris had requested one week of vacation to visit his mother, Betty Morris, who lived out of state and was undergoing surgery. Melendez approved Morris‘s re-
Morris was at his mother‘s home in Parkersburg, West Virginia from October 29 through November 7, 2004. On October 29, Betty Morris underwent an outpatient needle biopsy of a lump in her left breast. Following the biopsy, she was bedridden for at least four days. During this time, Morris helped her with cooking, housekeeping, and bathing. During his deposition, Morris was asked if his mother was ever incapacitated, to which he answered “no.” Betty Morris claims that during this time she suffered from headaches, stomach problems, dizziness from anesthesia administered during her biopsy, and pain and discomfort in her breast. Betty Morris learned that the lump was benign on or about November 1 when she received the results of the pathology report. She also saw Dr. Adam Kaplan for a post-surgical follow-up examination on November 8, 2004 and returned at least twice more as a result of the continued soreness in her breast.
Morris contends that while he was at his mother‘s home, he called the store to inquire about operations but did not speak to Melendez. Morris drove back to Cleveland on November 7, 2004.
Morris claims that he returned to the store at his usual time, 4:00 a.m., on November 8, 2004. When he arrived, Morris saw a locksmith changing the locks to the store.4 He also saw his eventual replacement, Jose Rivera, working to open the store. Rivera is Hispanic. Morris testified that Rivera told him that he should contact Melendez regarding his employment.
At that point, Morris says that he returned home and at approximately 6:30 a.m. he called Melendez, leaving a voice message asking Melendez to call him regarding his employment. After his call was not returned, Morris says that he called Melendez at least twice more between 6:30 and 7:30 a.m., again leaving messages. Following this last call to Melendez, Morris did not attempt to contact anyone else at Family Dollar about his employment. Melendez never returned Morris‘s calls and denies receiving any phone calls from Morris.
Morris did not return to the store after November 8, 2004 and did not work any scheduled shifts after his week caring for his mother. Morris was officially terminated in mid-November 2004; on November 28, 2004, Morris was officially replaced by Rivera who had formerly been a Store Manager at another Family Dollar store.
Morris filed a complaint against Family Dollar in Ohio state court alleging: (1) violation of the FMLA because he was terminated while caring for his mother; (2) race or national origin discrimination in violation of Title VII and Chapter 4112 of the Ohio Revised Code based on the fact that (a) he was terminated and replaced by a less qualified Hispanic candidate, and (b) Family Dollar discriminates against non-Hispanic employees “by failing to hire them and/or relegating them to certain positions at certain stores and failing to promote them to higher paying and/or supervisory positions“; and (3) violation of Ohio common law for wrongful discharge. Family Dollar removed this action to federal court.
Family Dollar claims that Morris was not terminated because of his vacation, but terminated because he abandoned his employment. As evidence for this conclusion, it alleges that (1) Morris missed all of his remaining shifts without contacting Family Dollar; (2) Morris left his keys at the store; and (3) Melendez was informed by Capestany that Morris had called her on November 7, 2004 and resigned. In response, Morris contends there were only two sets of store keys and that he left his set at the Store during his absence for use by the Assistant Store Managers. He also denies that the alleged phone conversation with Capestany ever took place and argues that because Capestany did not appear at her deposition, her statement constitutes inadmissible hearsay that should not have been considered by the district court.5
The district court granted Family Dollar‘s motion for summary judgment as to each of Morris‘s claims.
II.
We review a district court‘s grant of summary judgment de novo. See Davenport v. Causey, 521 F.3d 544, 550 (6th Cir.2008). Summary judgment will be affirmed if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
III.
Morris first argues that the district court erred in granting summary judgment to Family Dollar with respect to his FMLA claim. The FMLA entitles an eligible employee6 to twelve weeks of leave during any twelve-month period in order to care for a parent of the employee if that parent has a “serious health condition.”
The “entitlement” or “interference” theory arises from
Arban v. West Pub. Corp., 345 F.3d 390, 400-01 (6th Cir.2003). Morris asserts both theories on appeal.
A. FMLA Interference Theory
1. Preservation of Claim under the FMLA Interference Theory
First, Family Dollar argues that Morris did not preserve a claim based on the interference theory because he failed to clarify which theory he was advancing before the district court. Morris‘s complaint and response to Family Dollar‘s motion for summary judgment did not dis-tinguish between the two theories.7 The district court analyzed Morris‘s FMLA claim under the retaliation theory only.
In general, “[i]ssues that are not squarely presented to the trial court are considered waived and may not be raised on appeal.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir.1996). In the context of FMLA claims, however, this court recently concluded that a plaintiff had not waived a claim based on the interference theory where the complaint alleged general violations of
Although Wysong involved the issue of whether a plaintiff had waived an argu-
2. Merits of FMLA Interference Theory Claim
To establish a claim under the interference theory, a plaintiff must show that: (1) he was an eligible employee; (2) his employer was a covered employer; (3) he was entitled to leave under the FMLA; (4) he gave his employer notice of his intent to take leave; and (5) his employer denied him FMLA benefits or interfered with FMLA rights to which he was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.2003). The intent behind the employer‘s conduct is not relevant to an interference claim. Arban, 345 F.3d at 401.
Family Dollar does not dispute that Morris is an eligible employee and that Family Dollar is a covered employer. Family Dollar contends, however, that Morris was not entitled to leave under the FMLA; that if he was entitled, he did not provide sufficient notice; and that even if he did provide notice, Family Dollar did not interfere with his FMLA rights.
The FMLA “entitle[s] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.”
Morris contends that Betty Morris had a “serious health condition involving continuing treatment” based upon
However, Morris conceded that his mother was not “incapacitated.” (Morris Depo. at 107.) Morris also does not dispute that after the biopsy, Betty Morris received a pathology report that the lump was benign, and she did not see her doctor again until a follow-up visit ten days after the biopsy. An outpatient procedure with a follow-up appointment is not a “regimen of continuing treatment.”
As the district court commented, “the Court has serious doubts as to whether an outpatient needle biopsy with one follow-up visit two weeks later would constitute a ‘serious medical condition’ for purposes of the FMLA.” Morris v. Family Dollar Stores of Ohio, Inc., No. 1:05 CV 2211, 2007 WL 893051, at *7 n. 4 (N.D.Ohio Mar.21, 2007). We agree. The outpatient needle biopsy involved neither inpatient treatment nor continuing treatment by a healthcare provider and simply does not satisfy the plain meaning of a “serious health condition” in the relevant statutory and regulatory language.
Because Morris failed to establish that Betty Morris had a “serious health condition” under the FMLA, we find that he did not make out a prima facie case under the interference theory. Thus, we do not need
B. FMLA Retaliation Theory
FMLA retaliation theory claims are analyzed under the burden-shifting framework established by McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Edgar v. JAC Prods., 443 F.3d 501, 508 (6th Cir.2006). To establish an initial prima facie case of retaliation, a plaintiff must show the following by a preponderance of the evidence: “(1) he engaged in an activity protected by the [FMLA]; (2) that this exercise of his protected rights was known to the defendant; (3) that defendant there-after took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.” Arban, 345 F.3d at 404. The significant difference between an interference and a retaliation claim is the causal connection element, which encompasses an employer‘s intent; in contrast to the interference theory, under the retaliation theory, “the employer‘s motive is an integral part of the analysis.” Edgar, 443 F.3d at 508. If the plaintiff can prove a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employer‘s action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the defendant carries this burden, the plaintiff must show that the legitimate reasons offered by the defendant are pretextual. Id. at 804, 93 S.Ct. 1817.
Because Morris‘s leave was not on account of a serious health condition, he cannot establish the first element, that he engaged in an activity protected by the FMLA. For the same reasons that Morris‘s FMLA interference claim fails, we affirm the grant of summary judgment to Family Dollar on Morris‘s FMLA retaliation claim.
C. Capestany‘s Statements
Morris claims that the district court improperly relied on Capestany‘s statements in its decision. Her affidavit was submitted to the district court as an exhibit attached to Family Dollar‘s motion for summary judgment. Capestany‘s affidavit included the following facts: Morris called her on November 7, 2004 to tell her that he would not be returning to work; Morris did not come to the store on November 8; and Morris called her on November 8 to ask that she have Melendez call him. Because Capestany did not appear for her scheduled deposition, Morris filed a motion in limine, requesting that the district court not consider Capestany‘s affidavit. The district court did not rule on this motion but referenced Capestany‘s statements in its opinion. On appeal, Morris contends that the district court erred in “basing its decision” on these alleged hearsay statements.
Because we find that Morris did not establish a prima facie FMLA case, Capestany‘s statements about Morris‘s termination are irrelevant to our analysis. Therefore, resolution of the potential hearsay issues is not necessary.10
IV.
Morris next argues that the district court erred by granting Family Dollar summary judgment with respect to Mor-
Because Morris offers circumstantial, as opposed to direct, evidence of discrimination, he must satisfy the Supreme Court‘s burden-shifting framework:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee‘s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal citations omitted). To establish a prima facie case of Title VII discrimination in a typical case, a plaintiff must show that: “1) he is a member of a protected class; 2) was qualified for the job; 3) he suffered an adverse employment decision; and 4) was replaced by a person outside the protected class or treated differently than similarly non-protected employees.” Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001). However, in a reverse discrimination case—where a member of the racial majority claims racial discrimination—the first and fourth prongs of the test are different. To satisfy the first prong of the test, “the plaintiff must demonstrate background circumstances [to] support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Sutherland v. Mich. Dep‘t of Treasury, 344 F.3d 603, 614 (6th Cir.2003) (alteration in original) (internal quotation marks and citation omitted). To satisfy the fourth prong in a reverse discrimination case, the plaintiff must show that the defendant treated minority employees who were similarly situated to the plaintiff more favorably than he was treated. Id.
A. Prima Facie Case
1. Background Circumstances
As an initial matter, Morris suggests that we should abandon the background circumstances test altogether—an argument Family Dollar contends he did not preserve. We need not labor over the preservation issue. One panel cannot disregard the decisions of prior panels. Bowling Transp., Inc. v. NLRB, 352 F.3d 274, 282 (6th Cir.2003).
Morris‘s alternative argument is that he has alleged sufficient background circumstances: Morris is white; Melendez is Hispanic; and Melendez replaced Morris with Rivera, an Hispanic employee.
A plaintiff may establish background circumstances by providing “evidence of the defendants’ unlawful consideration of race in employment decisions in the past.” Sutherland, 344 F.3d at 615. This court has held that a plaintiff can demonstrate
The district court found that Morris had not shown background circumstances. Searching only for evidence that Family Dollar had unlawfully considered race as a factor in the past, the district court concluded: “Family Dollar management was composed of individuals of various races, who hired and fired individuals of various races. Employees of various races were frequently promoted and/or moved between stores.” Morris, 2007 WL 893051, at * 10. Family Dollar suggests that to establish background circumstances, Morris must show that Family Dollar unlawfully considered race in employment decisions in the past. But Zambetti was careful to say only that a plaintiff “can present” such evidence to show background circumstances. 314 F.3d at 256 (emphasis added) (citing Jamison v. Storer Broad. Co., 830 F.2d 194 (6th Cir.1987) (table)); accord Sutherland, 344 F.3d at 615. Following Zambetti‘s reasoning that “the mere fact that an adverse employment decision was made by a member of a racial minority is sufficient to establish the first prong of the prima facie case,” Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir.2008), Morris has provided the requisite background circumstances by showing that Melendez is Hispanic and that he replaced Morris with an Hispanic employee.
2. Similarly Situated
In a Title VII reverse discrimination case, this court has explained that
“[i]n order for ... employees to be considered similarly-situated ... the plaintiff must prove that all of the relevant aspects of his employment situation are nearly identical to those of the [minority] employees who he alleges were treated more favorably.”
Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994) (internal citations and quotation marks omitted). The “plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment,” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998), but the plaintiff needs to be similar in “all of the relevant aspects.” Id. (quoting Pierce, 40 F.3d at 802). Where an employee alleges discriminatory disciplinary action, this court has further explained that “the individuals with whom the plaintiff seeks to compare his/her treatment must ... 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.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Morris has not provided evidence of an employee similarly situated “in all relevant aspects.” Pierce, 40 F.3d at 802 (internal quotation marks omitted). To show this, he must show that another employee “engaged in the same conduct” without receiving the same consequences. See Mitchell, 964 F.2d at 583. Morris has offered no evidence that a non-white employee requested vacation to visit a relative and was treated differently upon return. Having failed to make a showing of a similarly situated employee, Morris cannot establish a prima facie case of discrimination. Arendale, 519 F.3d at 604.11
Lastly, Morris argues that the district court erred by dismissing his tort claim that his discharge violated Ohio public policy. Any alleged violation of Ohio public policy derived from a violation of the FMLA, Title VII, or the Ohio Revised Code is dependent upon the violation of one of those statutes.12 See Skrjanc, 272 F.3d at 317; Hausler v. Gen. Elec. Co., 134 Fed.Appx. 890, 895 (6th Cir.2005) (“Public policy claims necessarily fail where the underlying statutory claims fail.” (citing Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 375 (6th Cir.1999))). Because Morris has failed to establish a prima facie case of discrimination under the FMLA, Title VII, or the Ohio Revised Code, his tort claim fails as a matter of law.
VI.
For the foregoing reasons, we affirm the judgment of the district court.