                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0465n.06

                                            No. 12-5996

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                               FILED
CURTIS MCNEIL,                                     )                       May 09, 2013
                                                   )                 DEBORAH S. HUNT, Clerk
       Plaintiff - Appellant,                      )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
SONOCO PRODUCTS COMPANY,                           )   WESTERN DISTRICT OF TENNESSEE
                                                   )
       Defendant - Appellee.                       )
                                                   )




       Before: ROGERS, WHITE, and ALARCÓN,* Circuit Judges.


       PER CURIAM. Plaintiff-Appellant Curtis McNeil appeals the district court’s grant of

summary judgment in favor of Defendant-Appellee Sonoco Products Company (“Sonoco”) in this

employment discrimination case. McNeil worked as a machine operator for eighteen years at

Sonoco’s manufacturing facility in Memphis, Tennessee, until he was discharged. McNeil’s

complaint alleged that Sonoco discharged McNeil on the basis of his race, in violation of Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; age, in violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634; and disability, in violation

of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112. McNeil also alleged that he



       *
       The Honorable Arthur Alarcón, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.
No. 12-5996
McNeil v. Sonoco Products Co.

was discharged in retaliation for complaining about Sonoco’s previous failure to accommodate a

disability.


        The district court granted summary judgment in Sonoco’s favor on all claims, concluding that

McNeil abandoned his age and disability claims and failed to meet his burden of establishing a prima

facie case of race discrimination. McNeil appeals the grant of summary judgment as to his race

discrimination claim.1 We AFFIRM.


        We review the district court’s grant of summary judgment de novo, Lautermilch v. Findlay

City Schools, 314 F.3d 271, 274 (6th Cir. 2003), viewing the evidence in the light most favorable

to McNeil, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment is appropriate when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).


        Title VII prohibits an employer from “discharg[ing] any individual . . . because of such

individual’s race [or] color. . . .” 42 U.S.C. § 2000e-2(a)(1). Absent direct evidence of racial

discrimination, to establish a prima facie case of race discrimination, McNeil must demonstrate he:



        1
        At summary judgment, the district court deemed McNeil’s age and disability claims
abandoned. In his opening brief before this Court, McNeil focuses only on his race discrimination
claim. By failing to raise any specific challenges to the district court’s ruling that he abandoned his
age and disability claims, McNeil has waived those challenges. Kuhn v. Washtenaw Cnty., 709 F.3d
612, 624 (6th Cir. 2013) (“This court has consistently held that arguments not raised in a party’s
opening brief, as well as arguments adverted to in only a perfunctory manner, are waived.”) (citation
omitted); Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (holding an argument
waived where the plaintiff “wholly fail[ed] to address th[e] issue in her appellate brief”).

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No. 12-5996
McNeil v. Sonoco Products Co.

(1) was a member of a protected class; (2) was discharged; (3) was qualified for the position; and

(4) either was replaced by a person outside of the protected class or was treated differently than

similarly situated non-protected employees. Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir.

2008); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).


       For purposes of summary judgment, Sonoco conceded the first two elements—that McNeil

is a member of a protected group, African-American, and that his discharge was an adverse

employment decision.


       The district court concluded that questions of fact remained as to the third element, whether

McNeil’s serial absences rendered him unqualified for his position, but that McNeil failed to

establish the fourth element of his prima facie race-discrimination case because he was not replaced

by a person outside of the protected class. There is no dispute that McNeil’s position ultimately was

filled by an African-American. Consequently, the district court correctly concluded that McNeil

failed to establish he was replaced by a worker outside his protected class.


       McNeil alternatively could satisfy the fourth prima facie element by proffering evidence “that

a comparable non-protected person was treated better” in all relevant respects. Mitchell, 964 F.2d

at 582–83 (internal quotation marks omitted). McNeil failed to proffer any evidence that a similarly

situated employee outside of his protected class was treated more favorably and instead

relied—impermissibly—on argument and the allegations in his complaint. See id. at 584 (“It is now

quite well-established that, in order to withstand a motion for summary judgment, the party opposing


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No. 12-5996
McNeil v. Sonoco Products Co.

the motion must present ‘affirmative evidence’ to support his/her position.”) (citations omitted).

Thus, the district court properly held that McNeil failed to make out a prima facie case of race

discrimination.2


       AFFIRMED.




       2
         Even had the district court credited McNeil’s affidavit in its totality, McNeil would not have
satisfied the fourth prima facie element, as the affidavit did not address whether he was replaced by
a person outside the protected class, and set out only vague, conclusory statements that unnamed
white employees “are allowed to clock in late, if at all,” and are “not written-up for every little
infraction like blacks are.” R. 22-1 at 4.

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