                             NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 06a0428n.06
                                      Filed: June 22, 2006

                                                  No. 05-5009

                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT


MORTON WU,                                            )
                                                      )
         Plaintiff-Appellant,                         )
                                                      )    ON APPEAL FROM THE UNITED
v.                                                    )    STATES DISTRICT COURT FOR THE
                                                      )    MIDDLE DISTRICT OF TENNESSEE
TYSON FOODS, INC.,                                    )
                                                      )
         Defendant-Appellee.                          )
                                                      )    OPINION

Before: GILMAN and GRIFFIN, Circuit Judges; and DUGGAN, District Judge.*

         RONALD LEE GILMAN, Circuit Judge. Morton Wu sued his employer, Tyson Foods,

Inc., for alleged acts of national-origin discrimination, race discrimination, and retaliation under

Title VII of the Civil Rights Act and under various provisions of Tennessee statutory and common

law. The district court granted judgment as a matter of law in favor of Tyson on most of Wu’s

claims, holding that they were time barred. A jury returned a verdict in favor of Tyson on the

remaining claims. For the reasons set forth below, we AFFIRM the judgment of the district court.




                                             I. BACKGROUND

A.       Factual background



         *
           The Honorable Patrick J. Duggan, Senior United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 05-5009
Wu v. Tyson Foods, Inc.

       Wu began working for Tyson in August of 1997 as a Quality Assurance (QA) trainee in the

company’s International Department. Tyson, which is based in Springdale, Arkansas, was planning

at the time to open chicken processing plants in mainland China and had hired Wu, an American

citizen of Chinese origin, to work in China following the opening of the plants. Wu trained for six

months at Tyson’s corporate headquarters in Arkansas before embarking on a trip to three plants

in Hong Kong. Tyson did not own or operate any of the three plants. It was instead associated with

two of them under a cooperation contract and with the third pursuant to a joint-venture agreement.

       The parties dispute exactly what occurred during Wu’s visit to the three plants. Wu contends

that he discovered serious health and regulatory violations at the plants, reported those violations

in writing, and thereby incurred the wrath of his superiors. The company’s disappointment with his

reports, Wu insists, led to his being removed from his post as a QA representative in the

International Department. Tyson tells a different version of the story, maintaining that Wu accused

a company associated with one of Tyson’s Chinese trading partners of cheating Tyson. This

incident purportedly embarrassed Tyson and prompted Tyson officials to question Wu’s fitness as

a QA representative. Tyson also maintains that Wu was not reassigned for this reason, and that the

actual reason for his removal from that post was the company’s decision to postpone its plan to open

plants in China.

       Whatever the reason for the employment action, the parties agree that Wu’s stint in China

ended in December of 1998, and that he was transferred back to Tyson’s headquarters in Arkansas

to work as a Quality Assurance/Hazard Analysis and Critical Control Point (QA/HACCP) Auditor.

This transfer elevated Wu’s salary from $33,000 to $55,000 per year. He worked as a QA/HACCP

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No. 05-5009
Wu v. Tyson Foods, Inc.

Auditor until May of 2001, when his supervisor, Dr. Richard Roop, informed Wu that his position

had been eliminated as a result of corporate downsizing. Despite the elimination of his position, Wu

continued to work at the Springdale facility, with permission from Roop, while he searched for

another job both within Tyson and elsewhere.

       Wu obtained a position as the Evisceration Department Supervisor at Tyson’s plant in

Shelbyville, Tennessee three months later. According to Wu, his supervisor began harassing him

during his first day on the job, comparing Wu to either a “dying chick” or a “dying Chink.” These

incidents were not reported by Wu until November of 2001. In the meantime, problems began to

arise on the portion of the production line under Wu’s supervision. Inspectors from the United

States Department of Agriculture brought some of these problems to Tyson’s attention in October

of 2001, leading the company to first warn Wu verbally and later to issue a written reprimand. On

November 9, 2001, Wu was suspended after two additional problems arose on his portion of the

production line. His employment was finally terminated on November 16, 2001.

B.     Procedural background

       In January of 2002, Wu filed a charge of discrimination with the EEOC. He filed his

complaint in the district court on August 26, 2002, and later submitted a Supplemental First

Amended Complaint. The latter complaint alleged (1) race and national-origin discrimination under

Title VII and the Tennessee Human Rights Act (THRA), (2) hostile-work-environment

discrimination under Title VII and the THRA, (3) wrongful discharge under Title VII and the

THRA, and (4) retaliatory discharge under Tennessee statutory and common law. Tyson filed a




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Wu v. Tyson Foods, Inc.

motion for summary judgment on all of the claims, which the district court denied in August of

2004.

        The case then proceeded to trial in October of 2004. At the trial, Wu testified on his own

behalf, and his attorney introduced documentary evidence in support of his allegations. Tyson

moved for judgment as a matter of law at the conclusion of Wu’s proof, arguing that Wu had failed

to meet his burden as to any of the claims alleged in his complaint and that most of his claims were

barred by the applicable federal and state statutes of limitations.

        The district court granted Tyson’s motion in part, ruling that Wu’s federal and state-law

claims stemming from the 1998 transfer and the May 2001 downsizing were time barred. Only the

claims arising from Wu’s employment at the Shelbyville plant between August and November of

2001 were submitted to the jury. Tyson then presented its case, which included testimony from

three employees at the Shebyville plant during Wu’s tenure: Plant Manager Tom McCue,

Superintendent Tim Henson, and Complex Personnel Manager Jon Wildfish. The jury returned a

verdict in favor of Tyson on the remaining claims, and the district court denied Wu’s motion for a

new trial. This timely appeal followed.


                                          II. ANALYSIS

A.      Standard of review

        We review de novo the grant of a motion for judgment as a matter of law, applying the same

legal standard as did the district court. Sharpe v. Cureton, 319 F.3d 259, 265-66 (6th Cir. 2003).

Such a motion should be granted “only if ‘in viewing the evidence in the light most favorable to the



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Wu v. Tyson Foods, Inc.

non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could

come to but one conclusion, in favor of the moving party.’” Id. at 266 (quoting Gray v. Toshiba Am.

Consumer Prods., 263 F.3d 595, 598 (6th Cir. 2001)).

B.     The continuing-violation doctrine

       Wu’s appellate brief focuses exclusively on the Supreme Court’s decision in National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), a case that he says is not “merely

illuminating or instructive,” but “is dispositive.” We agree with Wu that Morgan controls the

outcome of the present case, although not in the way urged by Wu. The Morgan decision compels

the conclusion that the district court was correct in refusing to apply the continuing-violation

doctrine to any of Wu’s claims. Nevertheless, the court erred in dismissing as untimely the claim

that Wu was unlawfully removed from his position in May of 2001.

       At issue in Morgan was “whether, and under what circumstances, a Title VII plaintiff may

file suit on events that fall outside” the 300-day limitation period for filing a charge with the EEOC.

Morgan, 536 U.S. at 105. The Court provided a different answer for the two types of actions that

can be brought under Title VII: one alleging “discrete discriminatory acts” and the other alleging

“hostile work environment claims.” Id. at 110. Included in the former category are “[d]iscrete acts

such as termination, failure to promote, denial of transfer, or refusal to hire,” each of which “starts

a new clock for filing charges alleging that act.” Id. at 113-14. Hostile work environment claims,

on other hand, “involve[] repeated conduct” and require a victim to demonstrate that “the workplace

is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and

pervasive to alter the conditions of the victim’s employment and create an abusive working

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No. 05-5009
Wu v. Tyson Foods, Inc.

environment.” Id. at 115-16 (citations and quotation marks omitted). Under this latter theory,

discriminatory acts that contribute to the hostile nature of the work environment but that fall outside

of the limitations period may still be considered in determining liability so long as other actionable

conduct occurs within that period. See id. at 118.

       Wu’s argument falters because he fails to recognize that the claims deemed untimely by the

district court alleged “discrete discriminatory acts.” See Morgan, 536 U.S. at 110. Specifically, the

federal and state-law claims that the district court found untimely were based on Wu’s transfer from

China back to Arkansas in December of 1998 and the elimination of his post at the Arkansas facility

in May of 2001. These acts are directly analogous to the nonexhaustive list provided by the Court

in Morgan. See id. at 114 (listing “termination, failure to promote, denial of transfer, [and] refusal

to hire” as examples of discrete acts). Because the adverse employment actions alleged by Wu

constitute discrete acts, he was required to file a charge with the EEOC “within the . . . 300-day time

period after the discrete discriminatory act occurred.” Id. at 113. But Wu did not file the required

charge with the EEOC until January of 2002, over three years after he was removed from his trainee

position in China. The district court therefore correctly concluded that any claims stemming from

the 1998 employment action were untimely.

       Wu also looks for support in this court’s pre-Morgan decision in Dixon v. Anderson, 928

F.2d 212, 216 (6th Cir. 1991) (setting forth “two categories of narrowly limited exceptions to the

usual rule that statutes of limitations . . . are triggered at the time the alleged discriminatory act

occurred”) (citation and quotation marks omitted). He contends that, notwithstanding Morgan,




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No. 05-5009
Wu v. Tyson Foods, Inc.

“Dixon is still good law.” But this court’s decision in Sharpe v. Cureton, 319 F.3d 259, 268 (6th Cir.

2003), squarely refutes that contention.

       In Sharpe, this court directly addressed the continuing validity of the two categories set forth

in Dixon in the wake of the Morgan decision. As to the first Dixon category—“[t]he serial

violations component of the continuing violations doctrine”—the Sharpe court concluded that the

category was “analogous” to the Ninth Circuit rule that the Supreme Court had invalidated in

Morgan. Id. The Sharpe court continued:

       Accordingly, Morgan overturns prior Sixth Circuit law addressing serial violations,
       i.e., plaintiffs are now precluded from establishing a continuing violation exception
       by proof that the alleged acts of discrimination occurring prior to the limitations
       period are sufficiently related to those occurring within the limitations period.

Id. On the other hand, the second Dixon category survives Morgan. See id. (holding that the second

Dixon category “is not implicated by Morgan”). This second exception requires the plaintiff to

show that the employer had a longstanding and demonstrable policy of discrimination against the

class of which the plaintiff is a part. See Dixon, 928 F.2d at 216-17.

       Wu, however, has failed to make the showing necessary to bring his case under the narrow

second category of the continuing-violation doctrine. “To establish this category of continuing

violation, [Wu] must demonstrate something more than the existence of discriminatory treatment

in his case.” Sharpe, 319 F.3d at 268 (citation and quotation marks omitted). He must instead

introduce evidence that proves “that some form of intentional discrimination against the class of

which [he] was a member was the company’s standard operating procedure.” Id. (citation and

quotation marks omitted). Even assuming that the adverse employment action in December of 1998



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No. 05-5009
Wu v. Tyson Foods, Inc.

was itself discriminatory, nothing in the record indicates that discriminating against employees of

Chinese or Asian origin was Tyson’s “standard operating procedure.” See id. Tyson was therefore

entitled to judgment as a matter of law on all claims arising from the 1998 action.

       As the above discussion makes clear, however, the district court erred in finding untimely

the Title VII claims arising from the elimination of his position as part of a corporate downsizing

in May of 2001. See Morgan, 536 U.S. at 113 (explaining that employees are not barred “from filing

charges about related discrete acts so long as the acts are independently discriminatory and charges

addressing those acts are themselves timely filed”). Wu filed a charge of discrimination with the

EEOC in January of 2002, well within the 300-day statutory period identified in Morgan.

       Tyson conceded this point in its brief, but urged affirmance on the alternative ground that

Wu failed to carry his ultimate burden of proving that the elimination of his position in May of 2001

was discriminatory. At oral argument, however, Tyson insisted that the district court, in announcing

the dismissal of many of Wu’s claims, had actually adopted Tyson’s alternative argument and ruled

directly on the merits of the suit. We do not believe that the transcript can fairly be read as granting

Tyson’s motion on any ground other than the untimeliness of Wu’s claims. But because we can

affirm the district court on any ground supported by the record, we will proceed to address Tyson’s

contention that no reasonable juror could have found that the adverse employment action suffered

by Wu in May 2001 was discriminatory. See Shah v. Deaconess Hosp., 355 F.3d 496, 498 (6th Cir.

2004) (applying, in a Title VII case alleging national-origin discrimination, the rule that this court

“may affirm the judgment of the district court on any grounds supported by the record, even if they

are different from those relied upon by the district court”) (citation and quotation marks omitted).

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No. 05-5009
Wu v. Tyson Foods, Inc.

C.      Tyson is entitled to judgment as a matter of law on Wu’s claim of
        discriminatory treatment in May of 2001

        Tyson maintains in its brief that Wu failed to prove at trial that Tyson’s decision to eliminate

his QA/HACCP position in May of 2001 was discriminatory. In making this argument, Tyson first

contends that Wu did not make out a prima facie case of discrimination. Wu’s purported failure to

establish the four elements of his prima facie case, however, is not dispositive after a trial on the

merits. See Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir. 2004) (“When entertaining a

motion for judgment as a matter of law following a trial on the merits in a Title VII case, ‘a

reviewing court should not focus on the elements of the prima facie case but should assess the

ultimate question of discrimination.’”) (quoting Gray v. Toshiba Am. Consumer Products, Inc., 263

F.3d 595, 599 (6th Cir. 2001)) (citation omitted).

        At the same time, an appellate court is not prevented “from considering evidence that also

bears on th[e] prima facie case as long as it does so in order to address the ultimate question of

discrimination.” Noble, 391 F.3d at 727 (citation and quotation marks omitted). Because the district

court held that Wu had offered proof “sufficient to establish a prima facie showing of liability under

Title VII” when it denied Tyson’s motion for summary judgment, we must now decide whether Wu

carried his overall burden of persuasion on the issue of intentional discrimination. See id. at 721

(holding that, after a full trial, this court is “not permitted to decide whether the district court erred

in holding that [the employee] made out a prima facie case,” but must instead focus on the ultimate

question of intentional discrimination).




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No. 05-5009
Wu v. Tyson Foods, Inc.

       Assuming that Wu made out a prima facie case, Tyson maintains that he failed to rebut the

company’s legitimate, nondiscriminatory reason for eliminating Wu’s position as part of a corporate

downsizing. To rebut this legitimate motive, Wu introduced a newspaper article dated June 5,

2001—approximately two weeks after he was informed that his position was eliminated—that

describes the groundbreaking of a new corporate laboratory. This article, according to Wu, shows

that Tyson was actually expanding its operations at the time that it claimed to be downsizing, and

would therefore permit a jury to conclude that the downsizing justification was pretextual. See

Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (establishing the three

ways in which an employee can demonstrate that an employer’s claimed justification was in fact

pretextual).

       But as Wu acknowledged on cross-examination, Tyson’s new lab was not scheduled to open

until approximately 15 months after his position as QA/HACCP Auditor was eliminated, and in fact

took 24 months to complete. Furthermore, Wu introduced no evidence to refute the fact that Tyson

reduced the number of employees in the auditor position that Wu had occupied. All of this is to say

that no reasonable juror would have accepted the newspaper article as sufficient evidence to

demonstrate pretext.

       The above analysis unquestionably overlaps to some extent with the fourth prong of the Title

VII prima facie case, under which Wu would have had to show that his “position remained open”

after his discharge, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), or at a

minimum that Tyson singled him out “for discharge for impermissible reasons.” Godfredson v. Hess

& Clark, Inc., 173 F.3d 365, 371 (6th Cir. 1999) (explaining that the fourth prong of the prima facie

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No. 05-5009
Wu v. Tyson Foods, Inc.

case is modified when the employee is dismissed due to a reduction-in-force “because in a

reduction-of-force situation the plaintiff is not in fact replaced”) (citation and quotation marks

omitted). As mentioned above, however, Wu provided no proof to refute Tyson’s submission that

his position as QA/HACCP auditor was eliminated altogether.

       This failure of proof, when combined with the minimal evidence of pretext offered at trial,

would not have permitted “the factfinder [to] believe the plaintiff’s explanation of intentional

discrimination.” See Gray, 263 F.3d at 599 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

519 (1993)) (emphasis in original). We therefore affirm the district court’s grant of judgment as a

matter of law on the May 2001 national-origin-discrimination claim on the alternative ground that

Wu failed to produce evidence from which a reasonable juror could have concluded that his position

was eliminated for that reason. See 42 U.S.C. § 2000e-2(a)(1) (declaring unlawful employment

decisions that are made “because of [an] individual’s . . . national origin”).

D.     Wu has waived all other challenges to the dismissal of his claims

       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. See Caudill v. Hollan, 431 F.3d

900, 915 n.13 (6th Cir. 2005) (citing recent cases that stand for these two related propositions).

Although Tyson preemptively responds in its brief to a number of arguments that Wu could have

made, Wu simply did not make any of those arguments. Wu did not, as Tyson does, separate out

each federal and state claim and explain the propriety (or impropriety) of the district court’s ruling

as to each of them.




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No. 05-5009
Wu v. Tyson Foods, Inc.

        Before this court, Wu presents only the contention that “[t]he District Judge’s decision was

based on an erroneous view of the law of ‘continuing violation.’ This decision was reversible error.”

The remaining pages of his brief proceed to make the arguments discussed in Part II.B. above. In

addition, no argument is made regarding the issues decided by the jury. We therefore decline to

address the issues preemptively briefed by Tyson. See Dillery v. City of Sandusky, 398 F.3d 562,

569 (6th Cir. 2005) (declaring an argument waived where the plaintiff had “wholly fail[ed] to

address th[e] issue in her appellate brief”) (citation and quotation marks omitted). By failing to raise

any specific challenges to the district court’s decision other than the application of the continuing-

violation doctrine, Wu has waived those challenges. See id.


                                        III. CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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