1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0107P (6th Cir.)File Name: 00a0107p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________ROBINLADERACH,Plaintiff-Appellant,v.U-HAUL OFNORTHWESTERNOHIOand ROBERTGILRAY,Defendants-Appellees.;>1No. 99-3155Appeal from the United States District Courtfor the Northern District of Ohio at Toledo.No. 98-07122—James G. Carr, District Judge.Argued: November 22, 1999Decided and Filed: March 27, 2000Before: KEITH, CONTIE, and NORRIS, Circuit Judges._________________COUNSELARGUED:Keith J. Winterhalter, VASSAR, DILLS &DAWSON, Toledo, Ohio, for Appellant. William A. Nolan,SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, forAppellees.ON BRIEF:Keith J. Winterhalter, VASSAR,DILLS & DAWSON, Toledo, Ohio, for Appellant. William2Laderach v. U-Haul ofNorthwestern Ohio, et al.No. 99-31551The Alexis Road facility includes a rental center and repair shopwhere 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 whichKEITH, J., joined. NORRIS, J. (pp. 10-11), delivered aseparate concurring opinion._________________OPINION_________________CONTIE, Circuit Judge. Plaintiff-appellant RobinLaderach (“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 asa part-time transfer driver at its Alexis Road (Toledo)headquarters.1U-Haul is a wholly-owned subsidiary of UHaul International, the world’s largest truck and equipmentrental 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.2No. 99-3155Laderach v. U-Haul ofNorthwestern Ohio, et al.11Nor do I find it “suspicious” that U-Haul dismissed plaintiffdespite her record of promotions and pay raises. The extentof plaintiff’s financial mismanagement came gradually tolight; furthermore, the promotion that she sought went to abetter qualified individual. The fact that the district courtanalyzed plaintiff’s evidence as circumstantial rather thandirect makes no difference in evaluating defendant’snondiscriminatory explanation for its employment actions.As just noted, direct evidence of discrimination merelysuffices to establish aprima faciecase, which shifts theburden of production to the employer to come forward witha non-pretextual reason for its decision.Burdine, 450 U.S. at254-56. However, the burden of persuasion ultimately restswith plaintiff. Given the evidence presented to this court, itstrikes me as unlikely that plaintiff will be able to meet thisburden.Accordingly, I view our decision to remand this actionsomewhat expansively. Except that the district court shouldconsider that plaintiff presented direct evidence ofdiscrimination, it remains free to revisit the Title VII burdenshifting scheme in its entirety, including thenondiscriminatory explanation offered by U-Haul for itsdecision.10Laderach v. U-Haul ofNorthwestern Ohio, et al.No. 99-3155_________________________CONCURRENCE_________________________ALAN E. NORRIS, Circuit Judge, concurring. While I donot 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 aplaintiff 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 aprima faciecase ofdiscrimination 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 believethat 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.No. 99-3155Laderach v. U-Haul ofNorthwestern Ohio, et al.3As a part-time transfer driver, Laderach drove thecompany’s trucks between rental centers when necessary. InJune 1996, U-Haul promoted Laderach to part-time detailerand part-time office clerk. In August 1996, U-Haul promotedLaderach to full-time senior office clerk in the repair shop.As senior office clerk, Laderach was responsible for the repairshop’s accounts payable and inventory. Laderach reported toNeil Fliehmann, the repair shop manager, prior to hisdeparture in November 1996. Following Fliehmann’sdeparture, Laderach did much of the clerical work normallydone by the repair shop manager. In the absence of a repairshop manager, Laderach reported directly to GilrayOn December 2, 1996, Laderach wrote a letter to Gilrayasking to be considered for the repair shop manager position.Two men also applied for the repair shop manager position:George Bennett and Wendell Waggoner. Bennett was amechanic in U-Haul’s repair shop; Waggoner operated aMarathon Oil station that included towing and repair shopoperations. On February 17, 1997, Gilray hired Waggoner tobe the repair shop manager. That same day, Gilray terminatedLaderach. Laderach’s duties were assumed by two women:Amy Gordon and Susan Cooper.On March 6, 1998, Laderach filed a four-count complaintagainst U-Haul and Gilray alleging: sex discrimination inviolation of 42 U.S.C. § 2000e-2 (Count I); sexdiscrimination in violation of Ohio Rev. Code § 4112.02(Count II); a violation of federal and state public policiesagainst sex discrimination (CountIII); and intentionalinfliction of emotional distress (Count IV). In support of herclaim, Laderach asserted that: she was qualified for theposition that she sought; she had a flawless employmentrecord with U-Haul prior to her termination; a repair shopmanager from Detroit, David Moore, encouraged her to applyfor the position because he felt, after working with her forsome time, that she was qualified to manage the repair shop;Gilray admitted that he did not promote her to the repair shopmanager position because of her sex; and Gilray stated that4Laderach v. U-Haul ofNorthwestern Ohio, et al.No. 99-31553The record reveals that Laderach’s salary with U-Haul increasedfrom $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 wasfired 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.3On January 8, 1999, the district court granted thedefendants’ motion for summary judgment and dismissed allof Laderach’s claims. Laderach filed her timely notice ofappeal on February 3, 1999.No. 99-3155Laderach v. U-Haul ofNorthwestern Ohio, et al.94In light of our decision to reverse and remand this action to districtcourt, we need not address Laderach’s claim that her discharge violatedpublic policy.prove that her sex played a part in the appellees’ decisionsnotwithstanding her lack of mechanical and managementexperience and her alleged data entry errors.Because Laderach presents direct evidence ofdiscriminatory animus that the appellees failed to refute, weREVERSEthe district court’s January 8, 1999 Ordergranting the appellees’ motion for summary judgment, and weREMANDLaderach’s action to the district court for furtherconsideration.48Laderach v. U-Haul ofNorthwestern Ohio, et al.No. 99-3155those 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 animusincluded 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 onlyone 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 judgmentwas 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 jobperformance), we disagree because Laderach may be able toNo. 99-3155Laderach v. U-Haul ofNorthwestern Ohio, et al.5II.Standard of ReviewWe review a district court’s order granting summaryjudgmentde novo.Grand Traverse Band of Ottawa &Chippewa Indians v. Director, Michigan Dep’t of NaturalResources, 141 F.3d 635, 638 (6th Cir.),cert.denied, 119 S.Ct. 590 (1998). Summary judgment is appropriate “if thepleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law.”Fed. R. Civ. P. 56(c). Accordingly, summary judgment mustbe entered “against a party who fails to make a showingsufficient to establish the existence of an element essential tothat party’s case, and on which that party will bear the burdenof proof at trial.”Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986). “When reviewing a grant of summary judgment, thiscourt must confine its analysis to the evidence which wasbefore the district court.”Landefeld v. Marion GeneralHosp., Inc., 994 F.2d 1178, 1181 (6th Cir. 1993) (citationomitted).Laderach’s Claims Against U-Haul and GilrayOn appeal, Laderach alleges that U-Haul and Gilraydiscriminated against her because of her sex in violation of 42U.S.C. § 2000e-2 and Ohio Rev. Code § 4112.02. Becausethe elements and legal standards for establishing unlawful sexdiscrimination are the same under Ohio Rev. Code § 4112.02and under 42 U.S.C. § 2000e-2,Little Forest Medical Centerof Akron v. Ohio Civil Rights Comm’n, 61 Ohio St. 3d 607,609-10 (1991), we need not analyze Laderach’s sexdiscrimination claims separately under state and federal law.SeeNorbuta v. Loctite Corp., 181 F.3d 102 (6th Cir. 1999)(unpublished) (“[T]his court need not analyze Norbuta’sclaims regarding sex discrimination and sexual harassmentseparately under federal and state law” because the Ohio6Laderach v. U-Haul ofNorthwestern Ohio, et al.No. 99-3155Supreme 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.”).InMcDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), the United States Supreme Court set forth theevidentiary framework for analyzing workplacediscrimination actions. Under theMcDonnell Douglasburden-shifting analysis, a plaintiff bears the burden ofestablishing by a preponderance of the evidence aprima 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 establishesaprima faciecase, 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 theplaintiff to prove that the employer’s articulatednondiscriminatory reason for its action was merely pretext forunlawful discrimination.Texas Dep’t of Community Affairsv. 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). TheMcDonnell Douglasburden-shifting analysis also applies to “failure to promote”discrimination claims.SeeBrown v. State of Tennessee, 693F.2d 600, 603 (6th Cir. 1982) (“[T]o make out aprima 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 groupNo. 99-3155Laderach v. U-Haul ofNorthwestern Ohio, et al.7were indeed promoted at the time the plaintiff’s request forpromotion was denied.”) (citation omitted).In this action, the district court found that Laderach failedto present an issue of material fact with respect to the fourthelement of her claim because she failed to show that herqualifications were similar to Mr. Waggoner’s qualifications.In other words, the district court held that Laderach failed toestablish aprima faciecase of sex discrimination under theMcDonnell Douglasburden-shifting analysis. We disagree.Though it is true that Laderach lacked managementexperience and her mechanical background was limited,Laderach established an issue of material fact with directevidence of discrimination sufficient to defeat the appellees’motion for summary judgment.“In discrimination cases, direct evidence is that evidencewhich, if believed, requires the conclusion that unlawfuldiscrimination was at least a motivating factor in theemployer’s actions.”Jacklyn v. Schering-Plough HealthcareProds. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)(citations omitted).SeeNorbuta v. Loctite Corp., 181 F.3d102 (6th Cir. 1999) (unpublished) (“[D]irect evidence provesthe existence of a fact without any inferences orpresumptions.”).See alsoManzer v. Diamond ShamrockChems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (evidencethat requires the jury to infer a fact is not direct evidence).“Once there is credible direct evidence, the burden ofpersuasion shifts to the defendant to show that it would haveterminated the plaintiff’s employment had it not beenmotivated by discrimination.”Jacklyn v. Schering-PloughHealthcare Prods. Sales Corp., 176 F.3d at 926 (citationsomitted).InPrice Waterhouse v. Hopkins, 490 U.S. 228 (1989), theSupreme Court held: “In saying that gender played amotivating part in an employment decision, we mean that, ifwe asked the employer at the moment of the decision what itsreasons were and if we received a truthful response, one of