                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0663n.06

                                          No. 12-6480                                 FILED
                                                                                  Jul 17, 2013
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

JAMES MIKE DAVIS,                                   )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )
v.                                                  )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
MARSHALL COUNTY AMBULANCE                           )       COURT FOR THE MIDDLE
SERVICES,                                           )       DISTRICT OF TENNESSEE
                                                    )
       Defendant-Appellee.                          )




       BEFORE: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, District Judge.*


       PER CURIAM. James Mike Davis appeals the district court’s grant of summary judgment

in favor of his former employer on his age-discrimination and retaliatory-discharge claims. As set

forth below, we affirm.

       Davis worked for the Marshall County Emergency Medical Services (MCEMS) as an

emergency medical technician until his termination for absenteeism. In his complaint, Davis claimed

that MCEMS terminated him: (1) for not working while contagious with the flu in violation of

Tennessee public policy; (2) without providing proper notice or a hearing in violation of his due-

process rights; (3) because of his age in violation of the Tennessee Human Rights Act; and (4) in



       *
        The Honorable Sandra S. Beckwith, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 12-6480
Davis v. Marshall Cnty. Ambulance Servs.

retaliation for refusing to work while contagious. The district court granted MCEMS’s motion for

summary judgment on Davis’s claims.

       Davis appeals the district court’s grant of summary judgment in favor of MCEMS on his age-

discrimination and retaliatory-discharge claims. We review the district court’s decision to grant

summary judgment de novo. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012).

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       The district court concluded that Davis, who was forty-nine years old at the time of his

termination, made a prima facie showing of age discrimination but failed to demonstrate that

MCEMS’s reason for his termination – absenteeism – was a pretext for age discrimination. Davis

asserted that a younger employee, Alicia Jones, had worse or comparable attendance issues and was

not fired. Jones had been reprimanded and suspended for her absenteeism, like Davis, but resigned

prior to incurring another unexcused absence.

       In order to establish that another employee was similarly situated, “the plaintiff and the

employee with whom the plaintiff seeks to compare himself or herself must be similar in all of the

relevant aspects.” Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 378-79 (6th Cir. 2002)

(quotations and citations omitted). Jones and Davis were not similarly situated in at least one

relevant aspect: they reported to different supervisors. See Mitchell v. Toledo Hosp., 964 F.2d 577,

583 (6th Cir. 1992) (“[T]o be deemed ‘similarly-situated’, the individuals with whom the plaintiff

seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to



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No. 12-6480
Davis v. Marshall Cnty. Ambulance Servs.

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.”).

         Moreover, Davis’s own testimony further undercuts any conclusion that MCEMS’s reason

for dismissing him was pretextual. In his deposition, Davis was asked whether any supervisor ever

made a statement about age that would have indicated that age was a reason for his dismissal. He

responded, “None that I can remember. It was more or less just, you know, me trying to figure out

what was going on and just a personal assumption.” R. 22, Plaintiff’s Dep. at 151, Page Id. #113.

Accordingly, the district court properly granted summary judgment on Davis’s age-discrimination

claim.

         The district court also properly held that Davis’s retaliatory-discharge claim lacked merit.

MCEMS is immune from liability for common-law retaliatory discharge under Tennessee

Governmental Tort Liability Act. See Tenn. Code Ann. § 29-20-201(a); Baines v. Wilson Cnty., 86

S.W.3d 575, 579 (Tenn. Ct. App. 2002) (holding that county emergency-management agency was

immune from common-law retaliatory-discharge suit). Even if MCEMS were not immune, Davis

failed to establish a prima facie case of retaliatory discharge under Tennessee common law.

Establishing such a claim requires in part that the plaintiff show that “the reason for the discharge

was that [he] attempted to exercise a statutory or constitutional right, or for any other reason which

violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory

provision.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002).

         Davis’s complaint asserted that he engaged in a protected activity “[b]y refusing to work

while contagious” with the flu. But he did not cite any statutory or regulatory authority establishing

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No. 12-6480
Davis v. Marshall Cnty. Ambulance Servs.

that refusing to work when contagious was a protected activity or that it was against public policy

to discharge someone for undertaking such an activity. In his response to MCEMS’s motion for

summary judgment, Davis erroneously relies on the Tennessee Public Protection Act. That statute

prohibits an employee’s discharge or termination “solely for refusing to participate in, or for refusing

to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b). Davis submitted no other

evidence in support of his claim that he engaged in protected activity. He has therefore failed to

show that his refusal to work while contagious with the flu was also a refusal “to participate in, or

. . . remain silent about, illegal activities” and that his decision to stay home from work was thereby

protected under § 50-1-304(b).

        For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor

of MCEMS.




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