                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0774n.06
                                                                                           FILED
                                           No. 10-5809
                                                                                      Nov 18, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


DAVINA TREADWELL,                                 )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
AMERICAN AIRLINES, INC.,                          )   WESTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellee.                        )



       Before: MERRITT, CLAY and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. After American Airlines fired her, Davina Treadwell, a Caucasian

woman, sued the company under state law, claiming that the airline treated her less favorably than

African-American co-workers. Because she failed to present evidence that would allow a jury to

conclude that the company discriminates against Caucasians, we affirm.


                                                 I.


       Davina Treadwell worked for American Airlines at the Memphis, Tennessee airport. On

February 18, 2006, an ice storm hit Memphis. Treadwell was American’s highest ranking

operational employee on duty at the airport at the time. One of her subordinates, Malcom Horton,

an African-American crew chief, was responsible for de-icing an airplane waiting to depart. Horton

failed to perform the task effectively, leading to a three-hour delay for the plane as well as others
No. 10-5809
Treadwell v. Am. Airlines, Inc.

backed up behind it. The plane’s captain reported that Treadwell was “at a loss as to how to get

[Horton] to make things happen.” R.23-2 at 4. American fired Treadwell and Horton as a result of

the day’s delays.


       Treadwell sued the company in Tennessee state court alleging breach of contract and reverse

discrimination in violation of the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq.

American removed the lawsuit to federal district court and moved for summary judgment on both

claims. Holding that Treadwell was an at-will employee and that she failed to present sufficient facts

to support a reverse-discrimination claim, the district court granted the motion in full. Treadwell

appealed the court’s rejection of the reverse-discrimination claim.


                                                 II.


       The Tennessee Human Rights Act was designed to “[p]rovide for execution within Tennessee

of the policies embodied in the federal Civil Rights Acts of 1964,” as well as other federal civil

rights statutes. Tenn. Code Ann. § 4-21-101(a)(1); see also Parker v. Warren Cnty. Util. Dist., 2

S.W.3d 170, 176 (Tenn. 1999). Like the Tennessee courts, we treat employment discrimination

claims under the Tennessee Human Rights Act and Title VII as coterminous, applying United States

Supreme Court and Sixth Circuit Title VII precedents to claims under the Tennessee law. See, e.g.,

Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001).


       That means Treadwell can prevail on her claim in one of two ways: by introducing direct

evidence of discrimination or by introducing indirect evidence of it. See Trans World Airlines, Inc.

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Treadwell v. Am. Airlines, Inc.

v. Thurston, 469 U.S. 111, 121 (1985); White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th

Cir. 2008). “Direct evidence is evidence that proves the existence of a fact without requiring any

inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). In this

instance, that would mean evidence that, if believed, requires a finding that Treadwell was fired at

least in part because of her race. See Bartlik v. U.S. Dep’t of Labor, 73 F.3d 100, 103 n.5 (6th Cir.

1996)).


          To that end, Treadwell produced the affidavits of two coworkers, who speak generally of

seeing “unequal treatment of American Airlines towards Caucasians in comparison to other races.”

R.28-4 at 1; R.28-5 at 1. Yet these affidavits do not constitute direct evidence of discrimination

because they do not allege facts that compel the conclusion Treadwell was fired because of her race.

Any conclusion one could draw from the affidavits would be indirect, requiring inferences based on

the company’s treatment of others.


          To succeed, then, Treadwell must present indirect evidence of discrimination—evidence that

permits an inference of illegal discrimination through the McDonnell Douglas burden-shifting

framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–06 (1973). Our circuit has

modified that framework for “reverse discrimination” lawsuits filed by individuals who are members

of the relevant demographic majority. See Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir. 2004).

At the first step, Treadwell bears the burden of showing four things: (1) that the defendant “is that

unusual employer who discriminates against the majority”; (2) that she was qualified for the position

in question; (3) that she suffered an adverse employment action; and (4) that she was treated

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Treadwell v. Am. Airlines, Inc.

differently than other similarly situated employees. Arendale v. City of Memphis, 519 F.3d 587,

603–04 (6th Cir. 2008). If she satisfies these requirements, the burden shifts to American to show

a legitimate, non-discriminatory reason for firing her, at which point Treadwell would have to show

that American’s stated explanation was a pretext for discrimination. Id. at 603.


        Treadwell’s claim never makes it past the first frame, as she fails to offer evidence permitting

the inference that the company discriminates against Caucasians as a class. In the past, litigants have

met this requirement through a variety of background circumstances: statistical evidence or

employment policies showing a history of unlawful consideration of race by the employer,

Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 615 (6th Cir. 2003), evidence that the person

responsible for the employment decision was a minority, Zambetti v. Cuyahoga Comty. Coll., 314

F.3d 249, 257 (6th Cir. 2002), or evidence of ongoing racial tension in the workplace, Boger v.

Wayne Cnty., 950 F.2d 316, 324–25 (6th Cir. 1991).


        Treadwell makes no such allegation. Nor has she pointed to any comparable background

evidence of discrimination. The sum total of the evidence offered by her is this: (1) identical,

conclusory statements by two American employees that they “witnessed unequal treatment of

American Airlines towards Caucasians in comparison to other races,” and (2) examples of African-

American employees who were not fired for on-the-job failings. R.28-4; R.28-5. That is not enough

to get to a jury on this claim.




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       Concrete evidence that American treats “Caucasians [unequally] in comparison to other

races,” such as a showing that as a class they received lower pay or less vacation time or less

overtime or fewer promotions, could satisfy this requirement. But the fact that two other employees

share Treadwell’s opinion that American treated Caucasian employees “unequal[ly]” is not, for our

purposes, evidence. “Evidence” requires more than the plural of “opinion.”


       Nor is there any other evidence of discrimination. Demonstrating “unequal” treatment

requires a comparison, and Treadwell has not given us the things we need (or, more to the point, the

things a jury would need) to compare. The examples of African-American employees whom the

company did not fire for professional mistakes do not suffice because without some comparison to

the company’s treatment of Caucasian employees they tell us nothing about whether American is

“that unusual employer who discriminates against the majority.” Sutherland, 344 F.3d at 614. The

examples simply show that the company sometimes does not fire employees who make mistakes.

That by itself is not improper, let alone a violation of Tennessee’s civil rights law.


       The missing ingredient in Treadwell’s claim is information about American’s treatment of

Caucasian employees that would provide a contrast with its treatment of African-American

employees. Her own situation cannot provide that contrast, for it would make little sense to say that

the instant claim is itself a key part of the “background circumstances” against which it will be

evaluated. Our circuit’s heightened standard for reverse-discrimination cases presumes that such

discrimination is comparatively rare, and that some indication of impermissible discrimination in

addition to the plaintiff’s own poor treatment is necessary to support an inference of impropriety.

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Treadwell v. Am. Airlines, Inc.

See Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985). To rule otherwise

would treat Treadwell’s claim as both the foreground and the background evidence necessary to

reach a jury, end-running the logic of the reverse-discrimination burden-shifting framework. Even

beyond that, it would circumvent the framework itself. Showing that similarly situated employees

of other races were treated differently than the plaintiff is an independent evidentiary requirement,

see Arendale, 519 F.3d at 603–04, and holding that such evidence also satisfies the background

circumstances requirement would collapse a four-legged test into a three-legged one.


       The only Caucasian point of comparison offered by Treadwell (other than herself) is Cynthia

Hymel. As one of the coworkers who attested to a shared belief that American discriminates against

Caucasians, Hymel stated that “I myself am now retired from American Airlines due to similar

misconduct[] of American Airlines as that exhibited in” this case. R.28-4 at 3. She offered no

elaboration. Even assuming that Hymel is Caucasian, a point not confirmed in the affidavit, this solo

assertion of shared mistreatment is too conclusory to save Treadwell’s claims from summary

judgment. See Mitchell v. Toledo Hosp., 964 F.2d 577, 584–85 (6th Cir. 1992).


       Treadwell, it is true, tried to secure other evidence that might have saved her case, but her

attempt was too little and it was too late. She went a year without taking any depositions or seeking

any written discovery from the defense. Then, a week after the discovery period had closed, she

asked the district court to reopen discovery and to permit her to take two depositions of defense

witnesses. The district court denied the request. Treadwell challenges that decision as part of her

appeal, but it was an entirely reasonable exercise of the district court’s authority over the discovery

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Treadwell v. Am. Airlines, Inc.

process—and assuredly not an abuse of discretion. Perkins v. Am. Elec. Power Fuel Supply, Inc.,

246 F.3d 593, 604 (6th Cir. 2001).


       In addition to holding that Treadwell failed to meet the background-circumstances

requirement, the district court held that she had not pointed to any instances in which similarly

situated employees were treated differently. Because we agree with the district court’s conclusion

that Treadwell did not establish background circumstances sufficient to suggest an anti-Caucasian

bias on the part of American, we need not resolve this alternative ground for summary judgment.


                                               III.


       For these reasons, we affirm.




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