                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0421n.06

                                         No. 15-6418

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                                Jul 27, 2016
 LORETTA CHOATE,                     )
                                                                           DEBORAH S. HUNT, Clerk
                                     )
                                     )
     Plaintiff-Appellant,            )
                                                            ON APPEAL FROM THE
                                     )
 v.                                                         UNITED STATES DISTRICT
                                     )
                                                            COURT FOR THE MIDDLE
                                     )
 ADVANCE STORES COMPANY, INC., d/b/a )                      DISTRICT OF TENNESSEE
 ADVANCE AUTO PARTS,                 )
                                     )
     Defendant-Appellee.             )

       Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Advanced Stores Company fired Loretta Choate from her

job as general manager of an auto-parts store. She later brought this employment discrimination

suit, alleging that Advance fired her for taking medical leave and because of her gender, among

other things. In a carefully reasoned opinion, the district court granted summary judgment to

Advance. We affirm.

                                                  I.

       In October 2011, Choate became the general manager of an Advance store in Gallatin,

Tennessee. Her tenure as general manager began well enough; her supervisor, district leader Jon

Mattson, rated her performance as “satisfactory” in early 2012. In September 2012, however,

Mattson downgraded her performance to “challenging,” citing deficiencies in several areas. The

following month, Mattson put Choate on a performance-improvement plan. R. 44-3 at 3-4. Two

weeks later, Choate went on medical leave for a month to seek treatment for alcoholism and
No. 15-6418
Choate v. Advance Stores Co.
bipolar disorder. After her return, Choate complained that Mattson micromanaged her by asking

her to assist him in firing one employee, and by questioning her decision to hire another.

According to Choate, Mattson was “continually [finding] ways to question her authority and

judgment.” R. 1 at 3.

       Matters worsened for Choate in December 2012. An employee, Christina Pettit, found a

time-stamped receipt for alcohol in one of Advance’s commercial trucks and reported the receipt

to Mattson. Another employee, Shelley Robinson, was using the truck at the time stamped on

the receipt. At Mattson’s direction, Choate questioned Robinson, who denied buying alcohol

during work hours. Mattson then told Choate to suspend Robinson for a few days while they

continued to investigate. R. 44-1 at 9.

       Soon after Robinson returned to work, Pettit complained to Mattson that Robinson was

harassing her. R. 44-3 at 9. Mattson and a human-resources manager for Advance decided that

Robinson should be transferred to a different store. Id. Choate objected, emailing the human-

resources manager to complain that the incident had “humiliated” Robinson and created “a lot of

drama” in the store. R. 44-2 at 1-2. According to Mattson, Choate fixated on Robinson’s

transfer, ignoring the Gallatin store’s still-deteriorating performance. R. 44-3 at 15.

       On January 8, 2013, Choate called Advance’s human-resources hotline to complain that

employees had created “drama” and a “hostile work environment” after Robinson’s transfer.

Choate also said that she had been treated unfairly when Mattson directed her to suspend and

then reinstate Robinson, and when Mattson blamed Choate for the store’s “drama.” R. 44-2 at

49-50. Human Resources concluded that Choate’s complaints were meritless.

       The morning of January 15, 2013, Choate told Mattson that she would be late to work

because she needed to buy a car battery. While Choate was out, she received a call from




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Choate v. Advance Stores Co.
Robinson, who sounded suicidal. R. 44-1 at 18. Choate went to Robinson’s house and remained

there all day. Choate did not tell Mattson that she would be skipping work, but she did call

several employees in the store over the course of the day. R. 44-1 at 19. Advance requires an

employee to notify her supervisor if she will be absent. R. 44-2 at 43. When Mattson called

Choate at the end of the day, she said that her phone had died, and that she had been with

Robinson all day. R. 44-3 at 11.

       Mattson fired Choate the next day, writing that she had badly mismanaged the situation

surrounding Robinson. According to Mattson, Choate allowed Robinson to retaliate against

Pettit. R. 44-2 at 3. Choate spent too much time focused on Robinson rather than her store,

ultimately abandoning the store to stay with Robinson. Id. Mattson concluded that Choate’s

actions “had a severely detrimental effect on the store,” “represent[ed] gross misconduct,” and

violated Advance’s code of ethics. Id. Choate signed the report, but stated that she did not agree

with all of its conclusions. She also said she thought she was being fired because she had

contacted Human Resources. Id.

       Choate sued Advance, alleging that the store violated the Tennessee Human Rights Act,

the Americans with Disabilities Act, and Title VII of the Civil Rights Act. The district court

granted summary judgment to Advance. This appeal followed.

                                               II.

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

715 F.3d 151, 155 (6th Cir. 2013).

       The Americans with Disabilities Act forbids employment discrimination on the basis of

disability. 42 U.S.C.A. § 12112(a). Under the McDonnell Douglas burden-shifting framework,

Choate bears the initial burden of establishing a prima facie case of discrimination. Sjostrand v.




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Choate v. Advance Stores Co.
Ohio State Univ., 750 F.3d 596, 599 (6th Cir. 2014). The burden then shifts to Advance to

articulate a legitimate, nondiscriminatory reason for firing her. Id. Choate must then present

evidence from which a jury could find that Advance’s proffered reason is merely pretext. Id.

       The question of pretext controls here.         Advance offered several nondiscriminatory

reasons for firing Choate. First, her performance had declined before she went on leave, and she

did not follow her performance-improvement plan after her return. Second, she mishandled the

Robinson investigation and transfer. Third, Choate did nothing when Robinson harassed Pettit.

Finally, Choate did not tell Mattson that she would not be coming to work at all on the day she

stayed with Robinson.

       Choate asserts that Advance’s reasons for firing her do not have any factual basis. See

Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 779 (6th Cir. 2016). But Choate

lacks evidence to back up her assertion. She concedes that her store was performing poorly; she

contends only that she needed more time to correct the problem. That contention is undermined,

however, by her complete neglect of her performance-improvement plan in the time that she did

have. Choate also concedes that she did not tell Mattson that she was not coming to work; she

contends only that she had already told Mattson that she would be late, which, in her view, was

good enough. But Advance’s employee handbook differentiates tardiness from absence. R. 44-2

at 43-44. Choate has no evidence that Advance cited her poor performance and unreported

absence as pretexts for discrimination. Her disability-discrimination claim therefore fails.

       Choate also alleges that Advance discriminated against her because of her gender, in

violation of the Tennessee Human Rights Act and Title VII of the Civil Rights Act. The scope

of the Tennessee Act is “coextensive with federal law.” Parker v. Warren Cnty. Util. Dist.,

2 S.W.3d 170, 172 (Tenn. 1999). Hence we apply the same standard to both statutes. See




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Choate v. Advance Stores Co.
Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 673 (6th Cir. 2008). To establish

a prima facie case of gender discrimination, Choate must show, among other things, that she was

treated less favorably than a male employee who was “similarly situated” to her “ in all relevant

respects.” Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006). Choate seeks to

compare her situation to that of a male general manager named “Alex.” But she offers no

evidence about Alex—much less that she and Alex are similarly situated.             Her gender-

discrimination claim therefore fails.

       Finally, Choate alleges that Advance retaliated against her, in violation of the Tennessee

Human Rights Act and Title VII, after she complained about discrimination. To prevail on a

retaliation claim, Choate must show, among other things, that she complained about

discrimination. See Imwalle v. Reliance Med. Products, Inc., 515 F.3d 531, 544 (6th Cir. 2008);

see also 42 U.S.C.A. § 2000e-3(a); Tenn. Code Ann. § 4-21-301 (a)(1). Choate says she did that

when she called Advance’s human-resources hotline to complain about Robinson’s transfer.

During that call, Choate said that employees were “creating “drama” and “a hostile work

environment.” R. 44-2 at 49-50. But she never complained that Mattson or anyone else in

management discriminated against her. She therefore cannot make out a prima facie case of

unlawful retaliation.

                                            *         *    *

       The district court’s judgment is affirmed.




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