       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0107P (6th Cir.)
                File Name: 00a0107p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
 ROBIN LADERACH,
                                   
          Plaintiff-Appellant,
                                   
                                   
                                      No. 99-3155
            v.
                                   
                                    >
 U-HAUL OF NORTHWESTERN            
                                   
        Defendants-Appellees. 
 OHIO and ROBERT GILRAY,

                                   
                                  1
      Appeal from the United States District Court
       for the Northern District of Ohio at Toledo.
     No. 98-07122—James G. Carr, District Judge.
              Argued: November 22, 1999
           Decided and Filed: March 27, 2000
 Before: KEITH, CONTIE, and NORRIS, Circuit Judges.
                  _________________
                       COUNSEL
ARGUED: Keith J. Winterhalter, VASSAR, DILLS &
DAWSON, Toledo, Ohio, for Appellant. William A. Nolan,
SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for
Appellees. ON BRIEF: Keith J. Winterhalter, VASSAR,
DILLS & DAWSON, Toledo, Ohio, for Appellant. William


                            1
2        Laderach v. U-Haul of                         No. 99-3155       No. 99-3155                     Laderach v. U-Haul of        11
         Northwestern Ohio, et al.                                                                     Northwestern Ohio, et al.

A. Nolan, Jill S. Kirila, SQUIRE, SANDERS & DEMPSEY,                     Nor do I find it “suspicious” that U-Haul dismissed plaintiff
Columbus, Ohio, for Appellees.                                           despite her record of promotions and pay raises. The extent
                                                                         of plaintiff’s financial mismanagement came gradually to
  CONTIE, J., delivered the opinion of the court, in which               light; furthermore, the promotion that she sought went to a
KEITH, J., joined. NORRIS, J. (pp. 10-11), delivered a                   better qualified individual. The fact that the district court
separate concurring opinion.                                             analyzed plaintiff’s evidence as circumstantial rather than
                                                                         direct makes no difference in evaluating defendant’s
                         _________________                               nondiscriminatory explanation for its employment actions.
                                                                         As just noted, direct evidence of discrimination merely
                             OPINION                                     suffices to establish a prima facie case, which shifts the
                         _________________                               burden of production to the employer to come forward with
                                                                         a non-pretextual reason for its decision. Burdine, 450 U.S. at
  CONTIE, Circuit Judge.            Plaintiff-appellant Robin            254-56. However, the burden of persuasion ultimately rests
Laderach (“Laderach”) appeals the summary judgment                       with plaintiff. Given the evidence presented to this court, it
dismissal of her sex discrimination and wrongful discharge               strikes me as unlikely that plaintiff will be able to meet this
action against her former employer, defendant-appellee U-                burden.
Haul of Northwestern Ohio (“U-Haul”), and her former
supervisor, defendant-appellee Robert Gilray (“Gilray”). We                Accordingly, I view our decision to remand this action
reverse the district court’s January 8, 1999 Order and remand            somewhat expansively. Except that the district court should
this action to district court.                                           consider that plaintiff presented direct evidence of
                                                                         discrimination, it remains free to revisit the Title VII burden-
                                     I.                                  shifting scheme in its entirety, including the
  On May 24, 1996, Laderach began working for U-Haul as                  nondiscriminatory explanation offered by U-Haul for its
a part-time transfer  driver at its Alexis Road (Toledo)                 decision.
headquarters.1 U-Haul is a wholly-owned subsidiary of U-
Haul International, the world’s largest truck and equipment
rental network. U-Haul is U-Haul International’s retail and
marketing arm for Northwestern Ohio, Northeastern Indiana,
and Southeastern Michigan, and U-Haul’s employees are
subject to U-Haul International’s policies and procedures.
Defendant-appellee2 Robert Gilray oversees all aspects of U-
Haul’s operations.


    1
     The Alexis Road facility includes a rental center and repair shop
where U-Haul trucks and equipment are serviced.
    2
        Gilray reports to U-Haul International.
10    Laderach v. U-Haul of                        No. 99-3155      No. 99-3155                     Laderach v. U-Haul of        3
      Northwestern Ohio, et al.                                                                   Northwestern Ohio, et al.

               _________________________                              As a part-time transfer driver, Laderach drove the
                                                                    company’s trucks between rental centers when necessary. In
                    CONCURRENCE                                     June 1996, U-Haul promoted Laderach to part-time detailer
               _________________________                            and part-time office clerk. In August 1996, U-Haul promoted
                                                                    Laderach to full-time senior office clerk in the repair shop.
  ALAN E. NORRIS, Circuit Judge, concurring. While I do             As senior office clerk, Laderach was responsible for the repair
not object to this cause being remanded to the district court in    shop’s accounts payable and inventory. Laderach reported to
order to allow it to analyze plaintiff’s direct evidence of         Neil Fliehmann, the repair shop manager, prior to his
discrimination, I write separately in order to stress that the      departure in November 1996. Following Fliehmann’s
district court remains free to entertain a subsequent motion for    departure, Laderach did much of the clerical work normally
summary judgment after it has performed this analysis.              done by the repair shop manager. In the absence of a repair
                                                                    shop manager, Laderach reported directly to Gilray
  It seems to me that the majority implies that, once a
plaintiff has come forward with direct evidence of                    On December 2, 1996, Laderach wrote a letter to Gilray
discrimination, a defendant is precluded from presenting a          asking to be considered for the repair shop manager position.
legitimate reason for its employment decision. This is not the      Two men also applied for the repair shop manager position:
case. While a plaintiff may establish a prima facie case of         George Bennett and Wendell Waggoner. Bennett was a
discrimination by presenting direct evidence of intentional         mechanic in U-Haul’s repair shop; Waggoner operated a
discrimination by the defendant, Talley v. Bravo Pitino             Marathon Oil station that included towing and repair shop
Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995), this          operations. On February 17, 1997, Gilray hired Waggoner to
merely shifts the burden to the employer to produce evidence        be the repair shop manager. That same day, Gilray terminated
from which a reasonable trier of fact could conclude that its       Laderach. Laderach’s duties were assumed by two women:
actions were taken for legitimate nondiscriminatory reasons.        Amy Gordon and Susan Cooper.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
254-55 (1981). If the employer provides a well-supported              On March 6, 1998, Laderach filed a four-count complaint
explanation, the burden of production shifts back to the            against U-Haul and Gilray alleging: sex discrimination in
plaintiff to show that the proffered reasons were merely a          violation of     42 U.S.C. § 2000e-2 (Count I); sex
pretext for discrimination. Id. at 256. The plaintiff always        discrimination in violation of Ohio Rev. Code § 4112.02
bears the ultimate burden of persuading the trier of fact that      (Count II); a violation of federal and state public policies
the employer intentionally discriminated against her. St.           against sex discrimination (Count III); and intentional
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).               infliction of emotional distress (Count IV). In support of her
                                                                    claim, Laderach asserted that: she was qualified for the
  Based upon the evidence submitted to this court, I believe        position that she sought; she had a flawless employment
that defendant U-Haul came forward with a well-supported            record with U-Haul prior to her termination; a repair shop
explanation for the adverse employment actions taken against        manager from Detroit, David Moore, encouraged her to apply
plaintiff. Specifically, it strikes me as inconceivable that this   for the position because he felt, after working with her for
court would expect an employer to promote (or retain) an            some time, that she was qualified to manage the repair shop;
employee whose mismanagement of her financial                       Gilray admitted that he did not promote her to the repair shop
responsibilities resulted in significant losses to the employer.    manager position because of her sex; and Gilray stated that
4       Laderach v. U-Haul of                        No. 99-3155       No. 99-3155                           Laderach v. U-Haul of               9
        Northwestern Ohio, et al.                                                                          Northwestern Ohio, et al.

“women are not mechanically inclined.” Laderach also                   prove that her sex played a part in the appellees’ decisions
asserts that she was treated differently than the men she              notwithstanding her lack of mechanical and management
worked with on two occasions immediately preceding her                 experience and her alleged data entry errors.
termination. Specifically, Laderach asserts that she was told
to report for work, and the men she worked with were given               Because Laderach presents direct evidence of
the days off, when the walls and ceiling in the repair shop            discriminatory animus that the appellees failed to refute, we
were painted, and again when the floor in the repair shop was          REVERSE the district court’s January 8, 1999 Order
stripped and resealed. Accordingly, Laderach asserts that the          granting the appellees’ motion for summary judgment, and we
defendants’ discriminatory conduct resulted in her exposure            REMAND Laderach’s       action to the district court for further
to hazardous paint and chemical fumes.                                 consideration.4
   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 entry
errors resulted in inaccurate inventory records that forced U-
Haul to write-off almost $100,000 of inventory following
Laderach’s firing. Moreover, the appellees assert that many
vendors complained about Laderach’s failure to pay for parts
supplied to the repair shop. Moreover, the appellees assert
that Laderach was not qualified for the repair shop manager
position because she lacked management experience and
mechanical expertise. The appellees also assert that
Laderach’s numerous promotions and pay raises during 3her
employment with U-Haul belie her discrimination claim.
  On January 8, 1999, the district court granted the
defendants’ motion for summary judgment and dismissed all
of Laderach’s claims. Laderach filed her timely notice of
appeal on February 3, 1999.




                                                                           4
    3                                                                        In light of our decision to reverse and remand this action to district
     The record reveals that Laderach’s salary with U-Haul increased   court, we need not address Laderach’s claim that her discharge violated
from $5.00 per hour to $8.25 per hour.                                 public policy.
8    Laderach v. U-Haul of                        No. 99-3155      No. 99-3155                     Laderach v. U-Haul of         5
     Northwestern Ohio, et al.                                                                   Northwestern Ohio, et al.

those reasons would be that the applicant or employee was a                                      II.
woman.” Id. at 250 (footnote omitted). Accordingly,
Laderach must prove that her sex played a part in the                                   Standard of Review
appellees’ decision not to promote her to the repair shop
manager position. See Cesaro v. Lakeville Community School           We review a district court’s order granting summary
District, 953 F.2d 252, 254 (6th Cir. 1992) (“Whether              judgment de novo. Grand Traverse Band of Ottawa &
plaintiff’s case is characterized as a pretext case or a mixed     Chippewa Indians v. Director, Michigan Dep’t of Natural
motive case, plaintiff’s burden is to prove her gender played      Resources, 141 F.3d 635, 638 (6th Cir.), cert. denied, 119 S.
a part in the board’s decision not to hire her as Director of      Ct. 590 (1998). Summary judgment is appropriate “if the
Special Education.”).                                              pleadings, depositions, answers to interrogatories, and
                                                                   admissions on file, together with the affidavits, if any, show
   Laderach’s direct evidence of discriminatory animus             that there is no genuine issue as to any material fact and that
included Ken Hale’s testimony that, on two occasions, Gilray       the moving party is entitled to a judgment as a matter of law.”
told him that he would not promote Laderach to the repair          Fed. R. Civ. P. 56(c). Accordingly, summary judgment must
shop manager position because of her sex. Hale, the shop           be entered “against a party who fails to make a showing
foreman, also testified that Gilray did not want Laderach to       sufficient to establish the existence of an element essential to
answer “hotline” telephone calls because “women are not            that party’s case, and on which that party will bear the burden
mechanically inclined.” Laderach also points to the                of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
appellees’ refusal to give her time off like her male coworkers    (1986). “When reviewing a grant of summary judgment, this
when the repair shop’s walls were painted and the floors were      court must confine its analysis to the evidence which was
stripped and sealed.                                               before the district court.” Landefeld v. Marion General
                                                                   Hosp., Inc., 994 F.2d 1178, 1181 (6th Cir. 1993) (citation
   Though the appellees assert that “[i]t defies logic that only   omitted).
one month after promoting Laderach to the Senior Clerk
position . . . Gilray would remove Laderach from this same               Laderach’s Claims Against U-Haul and Gilray
position simply because she is a woman,” Appellees’ Brief at
12, Laderach asserts that, prior to her termination, she was         On appeal, Laderach alleges that U-Haul and Gilray
never disciplined or counseled by the appellees. If Laderach’s     discriminated against her because of her sex in violation of 42
assertions are true, the appellees’ sudden decision to terminate   U.S.C. § 2000e-2 and Ohio Rev. Code § 4112.02. Because
her after months of promotions and pay raises is suspicious        the elements and legal standards for establishing unlawful sex
when considered together with the discriminatory statements        discrimination are the same under Ohio Rev. Code § 4112.02
attributed to Gilray.                                              and under 42 U.S.C. § 2000e-2, Little Forest Medical Center
                                                                   of Akron v. Ohio Civil Rights Comm’n, 61 Ohio St. 3d 607,
  Though the appellees also assert that summary judgment           609-10 (1991), we need not analyze Laderach’s sex
was appropriate because they articulated legitimate business       discrimination claims separately under state and federal law.
reasons for not promoting Laderach to the repair shop              See Norbuta v. Loctite Corp., 181 F.3d 102 (6th Cir. 1999)
manager position (i.e., less experience than the candidate         (unpublished) (“[T]his court need not analyze Norbuta’s
selected) and for terminating her (i.e., problems with her job     claims regarding sex discrimination and sexual harassment
performance), we disagree because Laderach may be able to          separately under federal and state law” because the Ohio
6    Laderach v. U-Haul of                        No. 99-3155      No. 99-3155                     Laderach v. U-Haul of        7
     Northwestern Ohio, et al.                                                                   Northwestern Ohio, et al.

Supreme Court “has held that the elements and legal                were indeed promoted at the time the plaintiff’s request for
standards for establishing unlawful sex discrimination under       promotion was denied.”) (citation omitted).
Ohio Revised Code § 4112.02(A) are the same as those under
Title VII.”).                                                        In this action, the district court found that Laderach failed
                                                                   to present an issue of material fact with respect to the fourth
   In McDonnell Douglas Corp. v. Green, 411 U.S. 792               element of her claim because she failed to show that her
(1973), the United States Supreme Court set forth the              qualifications were similar to Mr. Waggoner’s qualifications.
evidentiary framework for analyzing workplace                      In other words, the district court held that Laderach failed to
discrimination actions. Under the McDonnell Douglas                establish a prima facie case of sex discrimination under the
burden-shifting analysis, a plaintiff bears the burden of          McDonnell Douglas burden-shifting analysis. We disagree.
establishing by a preponderance of the evidence a prima facie      Though it is true that Laderach lacked management
case of discrimination (i.e., a presumption of discrimination).    experience and her mechanical background was limited,
A plaintiff satisfies this burden by proving: (1) membership       Laderach established an issue of material fact with direct
in a protected class; (2) that she suffered an adverse action;     evidence of discrimination sufficient to defeat the appellees’
(3) that she was qualified for the position; and (4) that she      motion for summary judgment.
was replaced by, or treated differently than, someone outside
the protected class. Id. at 802. Once the plaintiff establishes       “In discrimination cases, direct evidence is that evidence
a prima facie case, an inference of discrimination arises. The     which, if believed, requires the conclusion that unlawful
burden of proof then shifts to the employer to articulate a        discrimination was at least a motivating factor in the
legitimate, nondiscriminatory reason for the plaintiff’s           employer’s actions.” Jacklyn v. Schering-Plough Healthcare
discharge. Id. Once established, the burden shifts back to the     Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)
plaintiff to prove that the employer’s articulated                 (citations omitted). See Norbuta v. Loctite Corp., 181 F.3d
nondiscriminatory reason for its action was merely pretext for     102 (6th Cir. 1999) (unpublished) (“[D]irect evidence proves
unlawful discrimination. Texas Dep’t of Community Affairs          the existence of a fact without any inferences or
v. Burdine, 450 U.S. 248, 252-53 (1981). In other words, the       presumptions.”). See also Manzer v. Diamond Shamrock
plaintiff must prove “that the [employer’s] asserted reasons       Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (evidence
have no basis in fact, that the reasons did not in fact motivate   that requires the jury to infer a fact is not direct evidence).
the discharge, or, if they were factors in the [employer’s]        “Once there is credible direct evidence, the burden of
decision, that they were jointly insufficient to motivate the      persuasion shifts to the defendant to show that it would have
discharge.” Burns v. City of Columbus, 91 F.3d 836, 844 (6th       terminated the plaintiff’s employment had it not been
Cir. 1996) (citations omitted). The McDonnell Douglas              motivated by discrimination.” Jacklyn v. Schering-Plough
burden-shifting analysis also applies to “failure to promote”      Healthcare Prods. Sales Corp., 176 F.3d at 926 (citations
discrimination claims. See Brown v. State of Tennessee, 693        omitted).
F.2d 600, 603 (6th Cir. 1982) (“[T]o make out a prima facie
[failure to promote] case the plaintiff must show that she           In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the
belongs to a protected group, that she was qualified for and       Supreme Court held: “In saying that gender played a
applied for a promotion, that she was considered for and           motivating part in an employment decision, we mean that, if
denied the promotion, and that other employees of similar          we asked the employer at the moment of the decision what its
qualifications who were not members of the protected group         reasons were and if we received a truthful response, one of
