1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

ROBIN LADERACH,

Plaintiff-Appellant,

v.

U-HAUL OF NORTHWESTERNOHIO and ROBERT GILRAY,

Defendants-Appellees.

Appeal from the United St

for the Northern District o

No. 98-07122—James G. C

Argued: Novembe

Decided and Filed: M

Before: KEITH, CONTIE, and N

____________

COUNSE

ARGUED: Keith J. WinterhalDAWSON, Toledo, Ohio, for AppSQUIRE, SANDERS & DEMPSAppellees. ON BRIEF: Keith JDILLS & DAWSON, Toledo, Ohi
2 Laderach v. U-Haul of

Northwestern Ohio, et al.

No. 99-3155

1The Alexis Road facility includes a rental center and repair shop

where U-Haul trucks and equipment are serviced.

2Gilray reports to U-Haul International.

A. Nolan, Jill S. Kirila, SQUIRE, SANDERS & DEMPSEY,Columbus, Ohio, for Appellees. 

CONTIE, J., delivered the opinion of the court, in which

KEITH, J., joined. NORRIS, J. (pp. 10-11), delivered aseparate concurring opinion.

_________________

OPINION

_________________

CONTIE, Circuit Judge. Plaintiff-appellant Robin

Laderach (“Laderach”) appeals the summary judgmentdismissal of her sex discrimination and wrongful dischargeaction against her former employer, defendant-appellee UHaul of Northwestern Ohio (“U-Haul”), and her formersupervisor, defendant-appellee Robert Gilray (“Gilray”). Wereverse the district court’s January 8, 1999 Order and remandthis action to district court.

I.

On May 24, 1996, Laderach began working for U-Haul as

a part-time transfer driver at its Alexis Road (Toledo)headquarters.1 U-Haul is a wholly-owned subsidiary of UHaul International, the world’s largest truck and equipment

rental network. U-Haul is U-Haul International’s retail andmarketing arm for Northwestern Ohio, Northeastern Indiana,and Southeastern Michigan, and U-Haul’s employees aresubject to U-Haul International’s policies and procedures.Defendant-appellee Robert Gilray oversees all aspects of UHaul’s operations.2

No. 99-3155 La

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Nor do I find it “suspicious” that Udespite her record of promotions aof plaintiff’s financial mismanaglight; furthermore, the promotion better qualified individual. The fanalyzed plaintiff’s evidence as cdirect makes no difference in nondiscriminatory explanation foAs just noted, direct evidence suffices to establish a prima facburden of production to the emploa non-pretextual reason for its deci254-56. However, the burden of pwith plaintiff. Given the evidence strikes me as unlikely that plaintifburden.

Accordingly, I view our decisi

somewhat expansively. Except thconsider that plaintiff presentdiscrimination, it remains free to reshifting scheme in its ennondiscriminatory explanation ofdecision.
10 Laderach v. U-Haul of

Northwestern Ohio, et al.

No. 99-3155

_________________________

CONCURRENCE

_________________________

ALAN E. NORRIS, Circuit Judge, concurring. While I do

not object to this cause being remanded to the district court inorder to allow it to analyze plaintiff’s direct evidence ofdiscrimination, I write separately in order to stress that thedistrict court remains free to entertain a subsequent motion forsummary judgment after it has performed this analysis.

It seems to me that the majority implies that, once a

plaintiff has come forward with direct evidence ofdiscrimination, a defendant is precluded from presenting alegitimate reason for its employment decision. This is not thecase. While a plaintiff may establish a prima facie case of

discrimination by presenting direct evidence of intentionaldiscrimination by the defendant, Talley v. Bravo PitinoRestaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995), thismerely shifts the burden to the employer to produce evidencefrom which a reasonable trier of fact could conclude that itsactions were taken for legitimate nondiscriminatory reasons.Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,254-55 (1981). If the employer provides a well-supportedexplanation, the burden of production shifts back to theplaintiff to show that the proffered reasons were merely apretext for discrimination. Id. at 256. The plaintiff alwaysbears the ultimate burden of persuading the trier of fact thatthe employer intentionally discriminated against her. St.Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

Based upon the evidence submitted to this court, I believe

that defendant U-Haul came forward with a well-supportedexplanation for the adverse employment actions taken againstplaintiff. Specifically, it strikes me as inconceivable that thiscourt would expect an employer to promote (or retain) anemployee whose mismanagement of her financialresponsibilities resulted in significant losses to the employer.

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As a part-time transfer driv

company’s trucks between rental cJune 1996, U-Haul promoted Ladand part-time office clerk. In AuguLaderach to full-time senior officAs senior office clerk, Laderach washop’s accounts payable and invenNeil Fliehmann, the repair shodeparture in November 1996. departure, Laderach did much of tdone by the repair shop manager. shop manager, Laderach reported 

On December 2, 1996, Laderac

asking to be considered for the repTwo men also applied for the repaGeorge Bennett and Wendell Wmechanic in U-Haul’s repair shoMarathon Oil station that includeoperations. On February 17, 1997be the repair shop manager. That saLaderach. Laderach’s duties were Amy Gordon and Susan Cooper.

On March 6, 1998, Laderach fil

against U-Haul and Gilray allegiviolation of 42 U.S.C. § 2discrimination in violation of Oh(Count II); a violation of federal against sex discrimination (Couinfliction of emotional distress (Coclaim, Laderach asserted that: sposition that she sought; she harecord with U-Haul prior to her tmanager from Detroit, David Moorfor the position because he felt, asome time, that she was qualified tGilray admitted that he did not promanager position because of her s
4 Laderach v. U-Haul of

Northwestern Ohio, et al.

No. 99-3155

3The record reveals that Laderach’s salary with U-Haul increased

from $5.00 per hour to $8.25 per hour.“women are not mechanically inclined.” Laderach alsoasserts that she was treated differently than the men sheworked with on two occasions immediately preceding hertermination. Specifically, Laderach asserts that she was toldto report for work, and the men she worked with were giventhe days off, when the walls and ceiling in the repair shopwere painted, and again when the floor in the repair shop wasstripped and resealed. Accordingly, Laderach asserts that thedefendants’ discriminatory conduct resulted in her exposureto hazardous paint and chemical fumes.

In response, U-Haul and Gilray assert that Laderach was

fired because of her poor performance, not because of her sex.Specifically, the appellees assert that Laderach’s data entryerrors resulted in inaccurate inventory records that forced UHaul to write-off almost $100,000 of inventory followingLaderach’s firing. Moreover, the appellees assert that manyvendors complained about Laderach’s failure to pay for partssupplied to the repair shop. Moreover, the appellees assertthat Laderach was not qualified for the repair shop managerposition because she lacked management experience andmechanical expertise. The appellees also assert thatLaderach’s numerous promotions and pay raises during heremployment with U-Haul belie her discrimination claim.3

On January 8, 1999, the district court granted the

defendants’ motion for summary judgment and dismissed allof Laderach’s claims. Laderach filed her timely notice ofappeal on February 3, 1999.

No. 99-3155 La

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4In light of our decision to reverse a

court, we need not address Laderach’s clpublic policy.prove that her sex played a part inotwithstanding her lack of mecexperience and her alleged data en

Because Laderach presents 

discriminatory animus that the appREVERSE the district court’s granting the appellees’ motion for sREMAND Laderach’s action to thconsideration.4
8 Laderach v. U-Haul of

Northwestern Ohio, et al.

No. 99-3155

those reasons would be that the applicant or employee was awoman.” Id. at 250 (footnote omitted). Accordingly,Laderach must prove that her sex played a part in theappellees’ decision not to promote her to the repair shopmanager position. SeeCesaro v. Lakeville Community SchoolDistrict, 953 F.2d 252, 254 (6th Cir. 1992) (“Whetherplaintiff’s case is characterized as a pretext case or a mixedmotive case, plaintiff’s burden is to prove her gender playeda part in the board’s decision not to hire her as Director ofSpecial Education.”).

Laderach’s direct evidence of discriminatory animus

included Ken Hale’s testimony that, on two occasions, Gilraytold him that he would not promote Laderach to the repairshop manager position because of her sex. Hale, the shopforeman, also testified that Gilray did not want Laderach toanswer “hotline” telephone calls because “women are notmechanically inclined.” Laderach also points to theappellees’ refusal to give her time off like her male coworkerswhen the repair shop’s walls were painted and the floors werestripped and sealed.

Though the appellees assert that “[i]t defies logic that only

one month after promoting Laderach to the Senior Clerkposition . . . Gilray would remove Laderach from this sameposition simply because she is a woman,” Appellees’ Brief at12, Laderach asserts that, prior to her termination, she wasnever disciplined or counseled by the appellees. If Laderach’sassertions are true, the appellees’ sudden decision to terminateher after months of promotions and pay raises is suspiciouswhen considered together with the discriminatory statementsattributed to Gilray.

Though the appellees also assert that summary judgment

was appropriate because they articulated legitimate businessreasons for not promoting Laderach to the repair shopmanager position (i.e., less experience than the candidateselected) and for terminating her (i.e., problems with her job

performance), we disagree because Laderach may be able to

No. 99-3155 La

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II.

Standard of R

We review a district court’s 

judgment de novo. Grand TravChippewa Indians v. Director, MResources, 141 F.3d 635, 638 (6th 

Ct. 590 (1998). Summary judgmpleadings, depositions, answers admissions on file, together with tthat there is no genuine issue as to the moving party is entitled to a judFed. R. Civ. P. 56(c). Accordinglybe entered “against a party who sufficient to establish the existence that party’s case, and on which that of proof at trial.” Celotex Corp. v. (1986). “When reviewing a grant ocourt must confine its analysis to before the district court.” LandHosp., Inc., 994 F.2d 1178, 1181 

omitted).

Laderach’s Claims Against 

On appeal, Laderach alleges 

discriminated against her because oU.S.C. § 2000e-2 and Ohio Rev. Cthe elements and legal standards fodiscrimination are the same under and under 42 U.S.C. § 2000e-2, Liof Akron v. Ohio Civil Rights Com609-10 (1991), we need not discrimination claims separately uSee Norbuta v. Loctite Corp., 181 

(unpublished) (“[T]his court neeclaims regarding sex discriminatiseparately under federal and stat
6 Laderach v. U-Haul of

Northwestern Ohio, et al.

No. 99-3155

Supreme Court “has held that the elements and legalstandards for establishing unlawful sex discrimination underOhio Revised Code § 4112.02(A) are the same as those underTitle VII.”).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), the United States Supreme Court set forth theevidentiary framework for analyzing workplacediscrimination actions. Under the McDonnell Douglasburden-shifting analysis, a plaintiff bears the burden ofestablishing by a preponderance of the evidence a prima faciecase of discrimination (i.e., a presumption of discrimination).A plaintiff satisfies this burden by proving: (1) membershipin a protected class; (2) that she suffered an adverse action;(3) that she was qualified for the position; and (4) that shewas replaced by, or treated differently than, someone outsidethe protected class. Id. at 802. Once the plaintiff establishesa prima facie case, an inference of discrimination arises. Theburden of proof then shifts to the employer to articulate alegitimate, nondiscriminatory reason for the plaintiff’sdischarge. Id. Once established, the burden shifts back to the

plaintiff to prove that the employer’s articulatednondiscriminatory reason for its action was merely pretext forunlawful discrimination. Texas Dep’t of Community Affairs

v. Burdine, 450 U.S. 248, 252-53 (1981). In other words, theplaintiff must prove “that the [employer’s] asserted reasonshave no basis in fact, that the reasons did not in fact motivatethe discharge, or, if they were factors in the [employer’s]decision, that they were jointly insufficient to motivate thedischarge.” Burns v. City of Columbus, 91 F.3d 836, 844 (6thCir. 1996) (citations omitted). The McDonnell Douglasburden-shifting analysis also applies to “failure to promote”discrimination claims. See Brown v. State of Tennessee, 693

F.2d 600, 603 (6th Cir. 1982) (“[T]o make out a prima facie[failure to promote] case the plaintiff must show that shebelongs to a protected group, that she was qualified for andapplied for a promotion, that she was considered for anddenied the promotion, and that other employees of similarqualifications who were not members of the protected group

No. 99-3155 La

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were indeed promoted at the time promotion was denied.”) (citation 

In this action, the district court f

to present an issue of material fact element of her claim because shqualifications were similar to Mr. WIn other words, the district court hestablish a prima facie case of sex McDonnell Douglas burden-shiftiThough it is true that Laderaexperience and her mechanical Laderach established an issue of evidence of discrimination sufficiemotion for summary judgment.

“In discrimination cases, direct 

which, if believed, requires the discrimination was at least a memployer’s actions.” Jacklyn v. Sc

Prods. Sales Corp., 176 F.3d 9(citations omitted). See Norbuta 102 (6th Cir. 1999) (unpublished) (the existence of a fact withpresumptions.”). See also ManzChems. Co., 29 F.3d 1078, 1081 that requires the jury to infer a fa“Once there is credible direct persuasion shifts to the defendant terminated the plaintiff’s emplomotivated by discrimination.” JaHealthcare Prods. Sales Corp., 1omitted).

In Price Waterhouse v. Hopkins

Supreme Court held: “In sayinmotivating part in an employment we asked the employer at the momreasons were and if we received a