                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0313n.06

                                           No. 09-4559
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                             May 13, 2011
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


DAVID CARSON,                                    )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
PATTERSON COMPANIES, INC., dba                   )    SOUTHERN DISTRICT OF OHIO
Patterson Dental Supplies; PATTERSON             )
DENTAL SUPPLIES, INC.,                           )
                                                 )
       Defendants-Appellees.                     )


       Before: BATCHELDER, Chief Judge; MARTIN and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Patterson Dental Supply discharged David Carson after the

company found evidence that Carson had submitted false expense reports. Carson, an African-

American, filed this action based on disparate-treatment and wage discrimination. The district court

granted summary judgment to Patterson Dental on both claims, and Carson appeals only the

disparate-treatment ruling. Because Carson presents no evidence that would allow a reasonable jury

to conclude that Patterson Dental’s purported reason for discharging him was a pretext for race

discrimination, we affirm.


                                                 I.
No. 09-4559
Carson v. Patterson Dental Supply, Inc.

       Patterson Dental distributes supplies to dentists and veterinarians. In March 2007, the

company hired David Carson as a Branch Operations Manager, an at-will position. One of Carson’s

responsibilities was to purchase tools and supplies for the Columbus, Ohio branch. He paid for some

purchases with an American Express corporate card, after which Patterson Dental reimbursed him.

For other purchases, the suppliers billed Patterson Dental directly.


       In two December 2007 purchases, Carson ordered several tools from Grainger Tool for

$754.77. He knew that Grainger was supposed to bill Patterson Dental directly for the orders, but

he apparently had trouble with the Grainger website. Under the “delivery info” section of the form,

Grainger’s website requested a “P.O. or AMEX™ Ref. #.” R.17-13 at 4. When Carson tried to

submit his order, the Grainger website, in his words, “would not let [him] complete the order without

putting in [his] AMEX information.” R.17 at 198. He entered his American Express number into

a field, and the order went through.


       Carson submitted expense reports for the Grainger purchases. At the end of the month, he

paid his American Express bill but discovered an anomaly: He still had money in the bank account

that he used to pay his American Express bill. The only money he put in that account was

reimbursements from Patterson Dental, and he used the funds in that account only to pay off his

American Express card, typically leaving a zero balance after he paid his American Express bill.




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Carson v. Patterson Dental Supply, Inc.

       The extra funds were there because Grainger had not charged his American Express card for

the December 2007 tool purchases. Although he had entered his American Express card number at

some point during the Grainger order, Grainger had billed Patterson Dental directly.


       After Carson noticed his unusual account balance, he told his supervisor Nick Abruzzo that

he “must have not been billed for something.” R.17 at 219. (Abruzzo testified that Carson did no

such thing, but at this stage of the litigation we resolve all factual disputes in Carson’s favor,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).) Abruzzo

allegedly “told [Carson] not to worry about it,” prompting Carson not to investigate further why he

had the extra funds. R.17 at 219.


       In early 2008, Polly Koch, who oversaw operations for the Columbus branch, discovered that

the company had improperly reimbursed Carson for some purchases. On February 12, 2008, Koch

emailed another Patterson Dental employee, asking, “Why would we be expensing something that

was a direct bill?” R.17-22 at 2. That employee passed the question along to Abruzzo, who sent

Carson an email the same day asking him to explain what had happened. Three days later, Carson

responded, “Taking care of what I can today, but we need to talk about some of the other answers

they are looking for . . .” Id. at 1. Abruzzo suggested that they meet on Monday.


       They met on Monday, and Abruzzo again asked Carson to explain why he had requested a

reimbursement when he had not been charged for the purchase. Carson responded that he thought

he had been charged for the Grainger purchase and that he needed to investigate further.


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No. 09-4559
Carson v. Patterson Dental Supply, Inc.

       On February 25, 2008, Abruzzo discharged Carson. Abruzzo was convinced that Carson had

stolen money from Patterson Dental and had violated the company’s prohibitions against “theft,

deception, [and] dishonesty.” R.19 at 15. The conversation “was really brief.” R.17 at 275. Carson

asked why he was being discharged, and Abruzzo responded that Carson’s handling of the Grainger

expense report situation “was against company policy,” R.19 at 19. Carson did not try to explain

what had happened, though he did argue that he “never blatantly falsified the expense report” and

that he could give the money back. R.17 at 274.


       Carson sued the company in state court, alleging disparate-treatment discrimination and

wage-and-hour discrimination under state law. The company removed the case on diversity grounds,

counterclaimed to recover the $754.77 reimbursement payment and moved for summary judgment.

The district court granted the motion as to Carson’s disparate-treatment claim because he could not

demonstrate that Patterson Dental’s proffered reason for discharging him was a pretext for race

discrimination. The court granted the motion on Carson’s wage-and-hour discrimination claim

because he “fail[ed] to show that defendant paid him less than other employees for equal work.”

R.35 at 25. Carson appeals the disparate-treatment ruling.


                                                II.


       Ohio race-discrimination law, the parties agree, generally parallels the requirements of Title

VII. Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421

N.E.2d 128, 131 (Ohio 1981). Before deciding how that law applies here, we must referee a dispute


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Carson v. Patterson Dental Supply, Inc.

about what type of race-discrimination claim Carson has filed. Carson says that this is a “mixed-

motive” race-discrimination claim, meaning that “both legitimate and illegitimate reasons motivated

the employer’s decision.” White v. Baxter Healthcare Corp., 533 F.3d 381, 396 (6th Cir. 2008).

Patterson Dental says that Carson raised only a “single-motive” race-discrimination claim, meaning

that nothing but “an illegitimate reason motivated an employment decision.” Id.


        Patterson Dental is correct. Carson raised only a single-motive claim before the district court.

All that Carson has to rebut the point is one sentence in his complaint: “Upon returning from his

meeting with Mr. Rogan, Mr. Abruzzo terminated Plaintiff for an alleged ethical violation related

to the expense.” R.3 ¶ 12; R.4 ¶ 12. But this statement does not describe, much less preserve, a

mixed-motive claim. His briefs before the district court do no better. There, he cited only cases

involving traditional disparate-treatment claims, not mixed-motive claims. To preserve an argument

for appeal, a party must first “squarely present[]” it to the district court. Thurman v. Yellow Freight

Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996). Carson did not raise a mixed-motive theory below,

and he thus has forfeited it on appeal.


        In the absence of direct evidence of race discrimination, which all agree does not exist here,

the McDonnell Douglas analysis controls. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under that framework, Carson bears the burden of establishing a prima facie case of race

discrimination: (1) that he was a member of a protected class; (2) that he was discharged; (3) that

he was qualified for the position; and (4) that he was replaced by a person outside the protected class.

Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). If Carson carries his burden, the onus

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Carson v. Patterson Dental Supply, Inc.

shifts to Patterson Dental to offer a legitimate, nondiscriminatory reason for discharging Carson.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If Patterson Dental meets its

obligation, Carson must show that the company’s proffered reason is a pretext for illegitimate race

discrimination: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did

not actually motivate the employer’s action, or (3) that they were insufficient to motivate the

employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).


        This case comes down to pretext, as the parties have no qualms with the district court’s

conclusions regarding the first steps of the McDonnell Douglas analysis. Carson argues that

Patterson Dental’s proffered reason was insufficient to fire him in view of the company’s treatment

of other employees, namely Bev Reeder, Ryan Guark, Nick Abruzzo and Steve Wilkins, all

Caucasian employees who allegedly were not discharged after engaging in substantially similar

conduct. We disagree.


        To be “similarly situated” to Carson, the other employees “must have dealt with the same

supervisor, have been subject to 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.” Mitchell, 964 F.2d at 583. That rules out Abruzzo. He was

Carson’s boss and could not “have dealt with the same supervisor” as Carson. Abruzzo also engaged

in different conduct from Carson. Abruzzo entered an item on an expense report under the wrong

code, which may have led to accounting errors but would not have resulted in reimbursement for an

expense that Abruzzo did not incur. Abruzzo also corrected his error before the report went to be

                                                 -6-
No. 09-4559
Carson v. Patterson Dental Supply, Inc.

processed for reimbursement, also distinguishing him from Carson. Nor did Ryan Guark work for

Abruzzo. He was a branch operations manager in the Indianapolis office and worked for a man

named Thad Miller. Carson, at any rate, does not even allege that Guark misused a corporate credit

card or submitted a false expense report.


       That leaves Bev Reeder and Steve Wilkins. Reeder accidentally purchased shoes with her

corporate credit card, while Wilkins bought gasoline for his personal vehicle with his corporate

credit card. Yet several circumstances distinguish their conduct from Carson’s. Like Carson, their

mistakes might have led to a violation of the company’s policy if left uncorrected. But unlike

Carson, Reeder and Wilkins corrected their mistakes immediately. Reeder realized what she had

done as soon as she swiped her card and tried to correct the mistake before she left the shoe store.

When that did not work, she promptly notified Carson and Abruzzo. Wilkins contacted Carson, his

supervisor, admitted his mistake and corrected the situation right away.


       Carson took a different path. Abruzzo emailed him about the Grainger expense reports on

February 12, 2008. Carson waited three days to respond, and even then he did not try to provide an

answer. Three days later, Carson and Abruzzo met, but still Carson had no answers. Sometime that

week Carson allegedly figured out what had happened, but he planned to wait until Abruzzo returned

from a business trip before he said anything. When Patterson Dental discharged him on February

25, Carson had known for thirteen days that the company wanted an explanation, yet he had not

corrected the mistake or explained what had happened. More than two months had passed since the

Grainger purchases, which alone distinguishes Carson from Reeder and Wilkins, who took care of

                                                -7-
No. 09-4559
Carson v. Patterson Dental Supply, Inc.

their mistakes immediately. More than that, Carson differs from them because the company asked

Carson for information about his reimbursement error, yet he never offered an explanation. Reeder’s

and Wilkins’ situations never got to that point. Because Carson has presented no evidence that

Abruzzo treated a similarly situated Caucasian employee differently than he treated Carson, he

cannot show that the company’s proffered reason for his discharge was a pretext for race

discrimination.


       But wait, says Carson, he did tell his supervisor—in January when he told Abruzzo that he

had extra money in his account and “must have not been billed for something.” R.17 at 219. The

problem is that, when Abruzzo told him in February that the company had found an expense

problem, Carson did nothing. He did not return the money. He did not remind Abruzzo of the

January conversation. He did not offer an explanation for the deficiency. While Reeder and Wilkins

promptly took care of their mistakes, Carson never did.


       Carson adds that there is a material dispute about who discharged him. He thinks that Polly

Koch and Abruzzo’s boss Tim Rogan were the decision makers, that Abruzzo was a “mere conduit

for their plan to have David Carson terminated.” Carson Br. at 22. Yet, on this record, that is pure

speculation—indeed, worse than that, as it is contradicted by the record. Koch testified that Abruzzo

did not discuss his decision with her and that she did not know what Abruzzo was going to do until

after he discharged Carson. Abruzzo testified that he alone made the decision to discharge Carson.

And although he talked to Rogan about the situation, they did not discuss whether Abruzzo should

fire Carson, and Abruzzo rejected Rogan’s offer of help in dealing with the matter. Carson concedes

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No. 09-4559
Carson v. Patterson Dental Supply, Inc.

he has only a “gut feeling” that Rogan was involved, R.17 at 119, but that alone will not suffice to

go to a jury over the issue. Mitchell, 964 F.2d at 584–85. Nor does Carson offer any evidence that

Abruzzo was motivated by racial animus, or indeed had any racial animus, in making the decision

to discharge Carson. In the final analysis, Carson has offered no evidence that would allow a

reasonable jury to find that the company discharged him on account of his race.


                                                III.


       For these reasons, we affirm.




                                               -9-
