                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0240n.06
                            Filed: March 31, 2009

                                             No. 07-3417

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ROBIN ALLEN MORRIS,                               )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
FAMILY DOLLAR STORES OF OHIO,                     )   NORTHERN DISTRICT OF OHIO
INC.,                                             )
                                                  )
       Defendant-Appellee.                        )
                                                  )
                                                  )

Before: GIBBONS and SUTTON, Circuit Judges; and ACKERMAN, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. 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.

       *
        The Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.

                                                  1
                                                  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 Shnepp 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.


       1
         Morris’s brief refers to an affidavit that he contends he filed with the district court. There
is no record that he filed this affidavit with the district court, and although he said he would file a
separate motion regarding this matter, he never did. Therefore, this opinion only refers to facts
included in the record on summary judgment motion.
       2
         Morris’s deposition testimony states that he began working as manager at the Detroit Road
Store in August 2004. It appears that he meant August 2003.
       3
         Morris’s deposition testimony says that Kozak was the District Manager in August 2004,
but again, it appears that he meant August 2003, when Morris began at the Detroit Road store.

                                                  2
       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 request and never inquired as to the details of Morris’s mother’s condition or whether

Morris’s leave would fall under the FMLA.

       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.




                                                  3
       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.




       4
         According to Melendez, the locks were changed for reasons unrelated to Morris’s
employment. Indeed, Morris stated that on the morning of November 8, loss prevention specialists
were present at the scene, and Rivera told him that there were some issues regarding staff stealing
from the store.

                                                 4
        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.

        With respect to the Title VII claim, Morris contends that Melendez, his District Manager,

wanted to replace him with Rivera—an Hispanic Store Manager from another store, and alleged

friend of Melendez—so that the store would have more Hispanic workers.

        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




                                                 5
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.” Fed. R. Civ. P.

56(c). Summary judgment is not appropriate if “a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We draw all

justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).




       5
          Capestany’s statement was contained in her affidavit submitted to the district court as an
exhibit attached to Family Dollar’s motion for summary judgment. Capestany’s affidavit also states
that Morris did not report to the store on November 8, 2004 and that Morris called her that day to
ask that she have Melendez call him. Morris attempted to depose Capestany, but she did not appear
for her scheduled deposition. Morris filed a motion in limine, asking that the district court not
consider Capestany’s statement.
         Because the district court did not rule on this motion yet referenced Capestany’s statements
in its opinion, Morris contends that the district court erred in “basing its decision” on these alleged
hearsay statements. We address this issue in our discussion of Morris’s FMLA claims.

                                                  6
                                                   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.” 29 U.S.C. § 2612(a)(1)(C). There are two theories of recovery

under the FMLA, which this court has summarized as follows:

          The “entitlement” or “interference” theory arises from [29 U.S.C.] § 2615(a)(1),
          which states that “[i]t shall be unlawful for any employer to interfere with, restrain,
          or deny the exercise of or the attempt to exercise, any right provided in this
          subchapter,” and from [29 U.S.C.] § 2614(a)(1), which provides that “any eligible
          employee who takes leave . . . shall be entitled, on return from such leave (A) to be
          restored by the employer to the position of employment held by the employee when
          the leave commenced; or (B) to be restored to an equivalent position.” The
          “retaliation” or “discrimination” theory arises from [29 U.S.C.] § 2615(a)(2), which
          provides that “[i]t shall be unlawful for any employer to discharge or in any other
          manner discriminate against any individual for opposing any practice made unlawful
          by this subchapter.”

Arban v. West Pub. Corp., 345 F.3d 390, 400-01 (6th Cir. 2003). Morris asserts both theories on

appeal.




          6
         Pursuant to 29 U.S.C. § 2611(2)(A), an “‘eligible employee’ means an employee who has
been employed--(i) for at least 12 months by the employer with respect to whom leave is requested
under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during
the previous 12-month period.” Here there is no dispute that Morris qualifies as an “eligible
employee.”

                                                    7
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 distinguish

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 29 U.S.C. § 2615 that could apply both to interference and retaliation claims. Wysong

v. Dow Chem. Co., 503 F.3d 441, 446 (6th Cir. 2007). In reversing the district court’s rejection of

the plaintiff’s interference claim as “an overly rigid approach which stands in conflict with our


       7
          Morris’s response to Family Dollar’s motion for summary judgment included four sections
addressing his FMLA claim. Section One is entitled “Plaintiff was qualified for FMLA leave” and
argues that Morris is an eligible employee, an element required for both types of claims. This section
cites an interference theory case, Pharakhone v. Nissan North America, Inc., 324 F.3d 405 (6th Cir.
2003). Section Two is entitled “The Plaintiff Gave Proper Notice,” again a required element for both
types of claims. Section Three is entitled “Plaintiff’s Mother Suffered From a ‘Serious Health
Condition,’” another requirement of both claims. Section Four is entitled “There is a Causal
Connection Between Plaintiff’s Leave and His Termination.” This is the fourth element of a
retaliation claim. At the end of this fourth section, Morris discusses the framework for a retaliation
case, citing two retaliation cases, Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309 (6th Cir.
2001), and Canitia v. Yellow Freight Systems, Inc., 903 F.2d 1064, 1066 (6th Cir.1990). The district
court assumed that Morris raised only a retaliation claim. Morris v. Family Dollar Stores of Ohio,
Inc., No. 1:05 CV 2211, 2007 WL 893051, at *6 (N.D. Ohio Mar. 21, 2007).

                                                  8
notice-pleading system,” id., we explained in Wysong that “[a] defendant looking at [the plaintiff’s]

complaint would be on sufficient notice that she was broadly alleging violations under 29 U.S.C. §

2615, and that her FMLA claim could encompass either the interference theory, the retaliation

theory, or both theories.” Id. This court emphasized that ambiguity on a plaintiff’s complaint does

not waive an interference claim and “does not box plaintiffs into one theory or the other.” Id.

        Although Wysong involved the issue of whether a plaintiff had waived an argument before

the district court instead of the appellate court, we find that our reasoning in Wysong applies equally

to the situation at hand.8 Although Morris should have clarified the theory on which he premised

his claim, Family Dollar was clearly on notice that he might be advancing an interference claim—an

issue it briefed below and on appeal. Given the overlapping nature of the two claims and the

ambiguous nature of Morris’s complaint, we will address both claims.

        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


        8
          Family Dollar argues that this case is controlled by the unpublished opinion in Conner v.
Hardee’s Food Systems, Inc., 65 F. App’x 19 (6th Cir. 2003). In Conner, the plaintiffs’ complaint
alleged the breach of an implied contract without specifying whether the plaintiffs were advancing
an implied-in-fact or implied-in-law theory of recovery. Id. at 24. After the defendant briefed both
theories in its motion for summary judgment, the plaintiffs’ response failed to clarify which theory
they were advancing or explicitly state that they were proceeding upon a contract implied-in-law
theory (although some language in their brief and one case cited suggested this theory). Id. The
Conner court concluded that the claim was waived because the plaintiffs had “failed to brief the
issue before the district court, and because the district court did not rule on the issue in its opinion.”
Id. at 24-25. Unlike the fairly different contract implied-in-law and contract implied-in-fact theories
at issue in Conner, the FMLA interference and retaliation theories at issue here are closely related
and largely overlap. Because of the similar nature of the two theories and Wysong’s on-point
reasoning, we find Conner inapplicable.

                                                    9
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.” 29 U.S.C. § 2601(b)(2). The statutory language of the FMLA limits “serious health

condition” to “an illness, injury, impairment, or physical or mental condition that involves . . .

inpatient care . . . or . . . continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The

regulations, in effect at the time the underlying conduct occurred, further defined “continuing

treatment” as a “period of incapacity . . . of more than three consecutive calendar days . . . that also

involves . . . [t]reatment two or more times by a health care provider . . . or . . . [t]reatment by a

health care provider on at least one occasion which results in a regimen of continuing treatment

under the supervision of the health care provider.” 29 C.F.R. § 825.114(a)(1)-(2) (2003).9


        9
         The Department of Labor has recently promulgated new regulations interpreting the phrase
“serious health condition.” See The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934,
68079 (Nov. 17, 2008). Those regulations took effect on January 16, 2009, id. at 67934, and neither
party argues that they should be applied retroactively here.

                                                  10
       The legislative history clarifies that the FMLA “is not intended to cover short-term conditions

for which treatment and recovery are very brief.” S. Rep. No. 103-3, at 28 (1993), as reprinted in

1993 U.S.C.C.A.N. 3, 30 (emphasis added). “Conditions or medical procedures that would not

normally be covered by the legislation include minor illnesses which last only a few days and

surgical procedures which typically do not involve hospitalization and require only a brief recovery

period.” Id.; see Beaver v. RGIS Inventory Specialists, Inc., 144 F. App’x 452, 456 (6th Cir. 2005)

(collecting cases where plaintiffs’ claims were denied because their “routine, short-term illnesses

[were] not covered by the FMLA”).

       Morris contends that Betty Morris had a “serious health condition involving continuing

treatment” based upon 29 C.F.R. § 825.114 (2003). Morris has offered some evidence of Betty

Morris’s health condition including: his own testimony that she needed help getting in and out of

the shower and with household chores, and that she had trouble walking for approximately four days;

and Betty Morris’s affidavit, providing that following the biopsy, she was “bedridden for at least

four days and her son had to take care of her every day needs.” (Betty Morris Aff. at 1.)

       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.” 29 C.F.R. § 825.114(a)(2)(i)(B) (2003). Neither does it constitute “[t]reatment two or

more times by a health care provider.” 29 C.F.R. § 825.115(a)(2)(i)(A) (2003); see Doughtie v.

Ashland, Inc., No. 03-2073, 2005 WL 1239286, at *4 (W.D. Tenn. May 24, 2005) (follow-up visit

                                                 11
with doctor eleven days after plaintiff had returned to work did not count as a second treatment by

a health care provider); see also Jones v. Denver Pub. Schs., 427 F.3d 1315, 1321 (10th Cir. 2005)

(“[T]o qualify for FMLA protection, the health condition must be sufficiently serious that it entails

an absence of more than three consecutive calendar days during which the employee obtained

treatment by a health care provider at least two times (or one time followed by a regimen of

continuing treatment).”); Perry v. Jaguar of Troy, 353 F.3d 510, 515 (6th Cir. 2003) (periodic

examinations every six months did not render the condition a “serious health condition”);

Marchisheck v. San Mateo County, 199 F.3d 1068, 1075 (9th Cir. 1999) (pre-arranged drug

counseling session did not qualify as 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 to address the other prongs of his interference claim.




                                                  12
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 (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 thereafter 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. If the defendant carries this burden, the plaintiff must show that the

legitimate reasons offered by the defendant are pretextual. Id. at 804.

        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.




                                                 13
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 Morris’s claims of race/national origin discrimination under Title VII and Chapter

4112 of the Ohio Revised Code. Federal case law interpreting Title VII applies to cases involving

alleged violations of Chapter 4112 of the Ohio Revised Code. See Plumbers & Steamfitters Joint


        10
         Morris’s statements to Capestany appear to be admissible admissions against interest. The
viable evidentiary issue is whether the district court should have considered Capestany’s affidavit
in view of her failure to appear for her deposition – an issue which we need not reach.

                                                   14
Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d 128, 131 (Ohio 1981). Thus,

“federal and state claims may be analyzed together . . . because ‘Ohio’s requirements are the same

as under federal law.’” Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (quoting Carter

v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003)). The following analysis of Title VII law

therefore applies to Morris’s claims under both Title VII and Chapter 4112 of the Ohio Revised

Code.

        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 (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



                                                  15
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 background circumstances by

showing simply that the employer was a member of the same minority race as the employees he was

promoting. See Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 257 (6th Cir. 2002) (relying on

the single factor that the police chief was African-American and was promoting African-Americans).


                                                 16
       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

                                                 17
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




       11
           As evidence of bias in favor of Hispanic employees, Morris presented evidence that Rivera
was paid slightly higher than he was, despite his lesser seniority. To the extent that this could
constitute support for a Title VII wage discrimination claim, as opposed to a Title VII termination
claim, Morris has since waived the claim because he failed to argue wage discrimination either
before the district court or on appeal and presented this evidence only to support his termination
claim. See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (“‘[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.’” (quoting United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999))); see also Radvansky
v. City of Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005) (“[Plaintiff’s] failure to raise an argument
in his appellate brief constitutes a waiver of the argument on appeal.”).

                                                  18
                                                 V.

       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 F. App’x 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.




       12
          Morris acknowledges that the FMLA cannot serve as the “policy” basis for his public
policy claim following Wiles v. Medina Auto Parts, 773 N.E.2d 526 (Ohio 2002). In Wiles, the Ohio
Supreme Court concluded that because “the statutory remedies in the FMLA adequately protect the
public policy embedded in the [FMLA],” a case alleging a violation of the FMLA could not establish
the requisite elements of a claim of wrongful discharge in violation of public policy. Id. at 535.

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