                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 12a0677n.06

                                             No. 10-3559
                                                                                               FILED
                             UNITED STATES COURT OF APPEALS                               Jun 26, 2012
                                  FOR THE SIXTH CIRCUIT
                                                                                   LEONARD GREEN, Clerk

CLIFFORD LITTON,                                           )
                                                           )         ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE SOUTHERN
v.                                                         )         DISTRICT OF OHIO
                                                           )
TALAWANDA SCHOOL DISTRICT,                                 )                             OPINION
                                                           )
       Defendant-Appellant.                                )




BEFORE:        BATCHELDER, Chief Judge; SILER and COLE, Circuit Judges.

       COLE, Circuit Judge. Plaintiff-Appellee Clifford Litton, an African-American custodian

working for Defendant-Appellant Talawanda School District (“Talawanda”), sued Talawanda for

race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000, et seq., among other claims. The jury returned a special verdict finding that Litton had not

suffered an adverse employment action, but that race had been a motivating factor behind

Tawalanda’s actions, and awarded Litton damages. The district court entered judgment for Litton,

reasoning that precedent prevented the court from revisiting the prima facie case after a full trial on

the merits. Talawanda appeals, arguing that Litton’s failure to make out his prima facie case is

dispositive, requiring the district court to grant judgment as a matter of law in its favor. We disagree

and AFFIRM.
No. 10-3559
Litton v. Talawanda School District

                                         I. BACKGROUND

        Sixteen years into Litton’s tenure as head custodian at Talawanda High School (“THS”), the

Talawanda School District (“Talawanda”) restructured its custodial division. As part of this

restructuring, it stripped Litton of his title as head custodian and transferred him to Talawanda

Middle School (“TMS”), telling Litton, the only African-American employee in the facilities

department, that he no longer “fit in” at the high school. Litton v. Talawanda School Dist., No. C-1-

07-027, 2010 WL 1257576, at *5 (S.D. Ohio March 31, 2010). Seeking to return to THS, Litton

applied for an open groundskeeper position at the high school. Despite being the most senior

applicant, his request was denied. Next, Litton requested to transfer into an open custodial position

at THS. Although he was again the most senior applicant, Litton’s request was denied.

        Litton brought suit against Talawanda, alleging race discrimination and retaliation in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq., and

Ohio law; age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seq., and Ohio law; and breach of Ohio public policy. Litton, 2010 WL 1257576, at *1.

The district court granted summary judgment in favor of Talawanda on several claims. The parties

thereupon proceeded to trial on (1) the age discrimination claim, for the denial of the groundskeeper

position, and (2) the race discrimination claim, for the transfer to TMS and denial of Litton’s request

to transfer back to his previous position at THS.

        At the close of Litton’s case-in-chief, Talawanda moved for judgment as a matter of law,

arguing that Litton had not proved its prima facie case. The court did not rule on the motion, but

took it “under advisement,” and the trial continued. At the end of the trial, the jury returned a special

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Litton v. Talawanda School District

verdict, answering specific questions about whether Litton’s age motivated the denial of the

groundskeeper position, whether the transfer to TMS and denial of a return to THS constituted

adverse employment actions, and whether race was a motivating factor in Talawanda’s decision to

transfer Litton to TMS or to deny his request to transfer back to THS. The special verdict form

instructed the jury to calculate damages if it found that age or race was a motivating factor in the

relevant employment actions. The jury found that Litton’s transfer to TMS and inability to transfer

back to THS did not constitute adverse employment actions, but that race was a motivating factor

in both these decisions. The jury awarded Litton $50,000 in compensatory damages, but no back or

front pay. It did not find age discrimination.

       Upon receiving the verdict, each party moved for judgment in its favor. Talawanda moved

for judgment as a matter of law, arguing that the jury’s finding that Litton had failed to prove an

element of his prima facie case required it to find no unlawful discrimination. Litton moved for an

entry of judgment in his favor because the jury had found unlawful discrimination and awarded

damages to him. Following briefing, the district court entered judgment for Litton. See Litton v.

Talawanda Sch. Dist., No. C-1-07-027, 2010 WL 1257576 (S.D. Ohio, Mar. 31, 2010). Talawanda

appeals.

                                          II. ANALYSIS

A. Standard of review

       The grant or denial of a motion for judgment as a matter of law is reviewed de novo. White

v. Burlington N. & Santa Fe R. Co., 364 F.3d 789, 794 (6th Cir. 2004) (en banc). The court reviews

the entire record “in the light most favorable to the nonmoving party.” Id. The court should affirm

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Litton v. Talawanda School District

the jury verdict unless there is “no legally sufficient evidentiary basis for a reasonable jury to find

for [the prevailing] party.” Id. (quoting Fed. R. Civ. P. 50(a)).

B. Title VII and Prima Facie Matters

       Title VII of the Civil Rights Act of 1964 prohibits employers from “fail[ing] or refus[ing]

to hire or to discharge any individual, or otherwise [] discriminat[ing] against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2 (2010). “The

ultimate question in every employment discrimination case involving a claim of disparate treatment

is whether the plaintiff was the victim of intentional discrimination.” Tisdale v. Federal Express

Corp., 415 F.3d 516, 529 (6th Cir. 2005) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 153 (2000)). A plaintiff may succeed in his Title VII claim “by persuading the court that

a discriminatory reason more likely motivated the employer . . . .” Id. (quoting St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 517 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256

(1981)).

       In disparate treatment cases lacking direct evidence of discrimination, we apply the burden-

shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Risch v. Royal

Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009). The first step of the framework requires the

plaintiff to establish a prima facie case. For Title VII, the plaintiff must prove by a preponderance

of the evidence that: “(1) he was a member of a protected class; (2) that he suffered an adverse

employment action; (3) that he was qualified for the position; and (4) that a person outside the

protected class was treated more favorably than him.” Braithwaite v. Timken Co., 258 F.3d 488, 493

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Litton v. Talawanda School District

(6th Cir. 2001). Once the plaintiff has established his prima facie case, the burden shifts to the

defendant to show “some legitimate non-discriminatory reason” for the disputed action. Id. (quoting

Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1329 (6th Cir. 1994)). Finally, the burden shifts

back to the plaintiff to prove that the defendant’s explanation is “a pretext for discrimination.” Id.

(citing Burdine, 450 U.S. at 255).

         The Supreme Court has clarified that the prima facie rubric does not create mandatory

elements for Title VII claims, but rather provides a “sensible, orderly way to evaluate the evidence

in light of common experience as it bears on the critical question of discrimination.” Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). Indeed, it has cautioned courts against

“applying legal rules which were devised to govern ‘the basic allocation of burdens and order of

presentation of proof,’ in deciding this ultimate question.” Hicks, 509 U.S. at 524 (quoting Aikens,

460 U.S. at 716) (internal citations omitted). Pursuant to this schema:

         when the defendant fails to persuade the district court to dismiss the action for lack
         of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the
         reason for the plaintiff’s rejection, the fact finder must then decide whether the
         rejection was discriminatory within the meaning of Title VII.

Aikens, 460 U.S. at 714-15 (footnote omitted). Stated differently, the prima facie inquiry “is a

preliminary matter which cannot be revisited at a later time.” EEOC v. Avery Dennison Corp., 104

F.3d 858, 861 (6th Cir. 1997). Therefore, once “the case proceed[s] to trial . . . we are no longer

concerned with whether the plaintiff established a prima facie case, but instead focus on the actual

question of discrimination.” Fuhr v. Sch. Dist. of City of Hazel Park, 364 F.3d 753, 757 (6th Cir.

2004).


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Litton v. Talawanda School District

       This principle is well settled in this circuit. See, e.g., Madden v. Chattanooga City Wide Serv.

Dep’t, 549 F.3d 666, 674 (6th Cir. 2008) (courts may not review the sufficiency of a prima facie case

after a merits trial); Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 546 (6th Cir. 2008) (same);

Tisdale, 415 F.3d at 529 (same); Fuhr, 364 F.3d at 757; Moore v. Freeman, 355 F.3d 558, 562 (6th

Cir. 2004) (same); Kovacevich v. Kent State Univ., 224 F.3d 806, 822 (6th Cir. 2000) (same); Suggs

v. ServiceMaster Educ. Food Mgmt., 72 F.3d 1228, 1232 (6th Cir. 1996) (same). See also Cline v.

Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000) (district court may not dismiss

plaintiff’s action for failure to meet the first McDonnell Douglas prong based on the evidence

defendant advances regarding the second McDonnell Douglas prong).

       Indeed, it is followed by every circuit in the country. See, e.g., Brady v. Office of Sergeant

at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988

(9th Cir. 2007) (“[W]hether Bates established a prima facie case of employment discrimination in

the summary judgment ‘burden-shifting’ sense is moot after trial. The relevant inquiry now is simply

whether the evidence presented at trial supports a finding of liability.”); Riser v. Target Corp., 458

F.3d 817, 820-21 (8th Cir. 2006) (“[W]e need not indulge the parties’ disputes about which material

facts are in dispute or whether Riser met his burden in establishing a prima facie case under

McDonnell Douglas regardless of the ‘threshold’ we have set for such proof.”); Whittington v.

Nordam Grp., Inc., 429 F.3d 986, 993 (10th Cir. 2005) (“We have repeatedly stated that juries are

not to apply the McDonnell Douglas framework and that we are not concerned with plaintiff’s proof

of a prima facie case when we review a jury verdict.”); accord Collado v. United Parcel Serv., Co.,

419 F.3d 1143, 1151 (11th Cir. 2005); Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir.

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Litton v. Talawanda School District

2003); Nawrot v. CPC Int’l, 277 F.3d 896, 906 (7th Cir. 2002); Coffey v. Dobbs Int’l Services, Inc.,

170 F.3d 323, 326 (2d Cir. 1999); Hopp v. City of Pittsburgh, 194 F.3d 434, 439 (3d Cir. 1999);

Gibson v. Old Town Trolley Tours of Wash., D.C., Inc., 160 F.3d 177, 181 (4th Cir. 1998); Sanchez

v. Puerto Rico Oil Co., 37 F.3d 712, 720 (1st Cir. 1994).

       Thus, precedent compels us to disregard the jury’s assessment of Litton’s prima facie case

and instead focus on “the ultimate question of discrimination vel non.” See Aikens, 460 U.S. at 714.

       Talawanda would have us reject this precedent based on the technicality that the district court

did not deny outright Talawanda’s motion for judgment as a matter of law, but rather allowed the

case to proceed and “delegated” the issue to the jury to resolve at the close of evidence. In making

this argument, it relies on Gafford v. General Electric Co., in which a district court likewise

instructed the jury to rule on the sufficiency of the plaintiff’s prima facie case at the close of

evidence, and this Court affirmed the district court’s judgment in favor of the defendant. 997 F.2d

150 (6th Cir. 1993), abrogated on other grounds by Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010).

Talawanda maintains that because the jury ruled in Talawanda’s favor on the adverse employment

action question, it was precluded from finding for Litton on the question of discrimination.

       Talawanda’s argument fails. Most importantly, Gafford differs from this case, because the

Gafford jury also found for the defendant on the ultimate question. The Gafford court resolved only

whether the district court committed reversible error by asking the jury to resolve questions regarding

the plaintiff’s prima facie case. The case at bar carries a contradiction that Gafford lacked: the jury

found for Talawanda on one question and for Litton on the other. Gafford does not instruct us on

how to resolve such a conflict.

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Litton v. Talawanda School District

        Aikens does resolve this very question and does so in Litton’s favor. In Aikens, the parties

underwent a full bench trial. At the close of evidence, the district court issued a verdict that

“erroneously focused on the question of prima facie case rather than directly on the question of

discrimination.” 460 U.S. at 717. After expressing “surpris[e]” that the parties continued to dispute

a threshold question after the trial had ended, id. at 714, the Supreme Court remanded the case to the

district court to “decide on the basis of the evidence before it whether the Postal Service

discriminated against Aikens.” Id. at 717. We adopted the Aikens principle in full in Avery

Dennison. In Avery Dennison, the district court likewise ruled, after a full trial on the merits, that

the plaintiff should lose because he had failed to establish an element of his prima facie case. 104

F.3d at 860. We relied on Aikens to reverse the district court’s ruling and remand it “for a

determination on the ultimate issue of discrimination.” Id. at 863.

        When Talawanda lost its summary judgment motion before trial and did not prevail in its

motion for judgment as a matter of law at the close of Litton’s case-in-chief, it “fail[ed] to persuade

the district court to dismiss the action for lack of a prima facie case.” See Aikens, 460 U.S. at 714.

That the district court did not deny the latter motion outright does not strengthen Talawanda’s claim.

Aikens does not condition its rule on the district court’s express denial of a motion for judgment as

a matter of law, but rather on (1) its failure to grant such a motion and (2) the defendant proceeding

to “respond[] to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection.”

Id. at 714-15. Cf. Tisdale, 415 F.3d at 529 (declining to visit sufficiency of prima facie case where

defendant did not move for judgment as a matter of law during trial); Avery Dennison, 104 F.3d 858,

860-61 (district court’s denial of plaintiff’s summary judgment motion prior to trial constituted

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Litton v. Talawanda School District

acknowledgment that plaintiff had met his prima facie burden). Thus, the jury’s assessment of

Litton’s prima facie case did not control its finding on the ultimate question of discrimination.

       In any event, we have already addressed the potential conflicts between Gafford, Aikens, and

Avery Dennison, interpreting Gafford to preclude the argument that Talawanda raises.                In

Kovacevich, we explained that:

       While, as Gafford states, the elements of the prima facie case can indeed go before
       a jury, Aikens and Avery Dennison simply state that in reviewing a trial that proceeds
       beyond the prima facie stage, neither the district court nor appellate court should
       refocus on the question of whether a plaintiff established her prima facie case. . . .
       [I]n reviewing the facts of a discrimination claim after there has been a full trial on
       the merits, a district court or an appellate court must focus on the ultimate question
       of discrimination rather than on whether a plaintiff made out her prima facie case.

224 F.3d 806, 824-25 (6th Cir. 2000). Thus, the district court was not only permitted to disregard

the jury’s answer to the adverse employment action question, it was required to do so, and instead

to evaluate the strength of the evidence as a whole.

       Talawanda confined its argument on appeal to whether the district court erred by failing to

defer to the jury’s determination of the adverse employment action question. It did not otherwise

challenge the sufficiency of the evidence supporting the jury’s finding on the ultimate question of

discrimination. Having rejected Talawanda’s argument, we see no need to address the sufficiency

of the evidence supporting the jury’s verdict.

                                       III. CONCLUSION

       We AFFIRM.




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No. 10-3559
Litton v. Talawanda School District

          ALICE M. BATCHELDER, Chief Judge, dissenting. This case turns on a simple

question: Does a Title VII plaintiff have to prove that he was discriminated against, or merely that

he faced any discrimination, including discrimination that was not harmful to him? This simple

question has a clear answer, one that is dictated by Title VII’s text, case law, and logic.

Unfortunately, that is not the answer that the majority adopts. Thus, I respectfully dissent from the

majority’s extraordinary holding that not only is Litton relieved of his burden to prove that he

suffered adverse discrimination, he is entitled to have the district court set aside a jury verdict finding

that he failed to meet that burden.

                                                    I.

          Talawanda transferred Litton from his job as a custodian at the Talawanda High School to

a custodian position at the Talawanda Middle School that had the same pay, work hours, and

responsibilities. But because Litton felt that working at the Middle School was less prestigious and

took him from relationships that he had enjoyed at the High School, he deemed the transfer a

demotion and sought to be transferred back. After Talawanda refused, Litton brought this Title VII

action.

          Litton’s claim survived a motion for summary judgment and came to trial. There, the jury

was charged with determining whether Litton had proved by a preponderance of the evidence that

either the initial transfer to the Middle School or the later refusal to return Litton to the High School

was a material adverse employment action. The jury found that Litton failed on both counts, a

finding it confirmed on Litton’s request for polling. Based on this finding, Talawanda moved for

judgment in its favor. The district court ultimately rejected the motion, holding that whether Litton

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Litton v. Talawanda School District

had suffered a material adverse employment action was relevant only to Litton’s prima facie case

and that the sole issue at trial was “whether defendant discriminated against plaintiff because of his

race.” The majority adopts that conclusion, holding that the “ultimate issue of discrimination” in

a Title VII case does not include proof that the discrimination was adverse but instead merely turns

on whether discrimination occurred at all.

                                                 II.

       As an initial matter, the majority is wrong that precedent such as EEOC v. Avery Dennison

Corp., 104 F.3d 858, 861 (6th Cir. 1997), “compels us to disregard the jury’s assessment” that Litton

had failed to prove that he suffered adverse discrimination simply because that assessment concerned

“Litton’s prima facie case.” Maj. Op. at 7. Although the jury’s finding was relevant to the prima

facie case, it was also—as shown below—integral to the ultimate issue before the jury. This Circuit

has repeatedly recognized that courts may “consider[] evidence that . . . bears on th[e] prima facie

case as long as it does so in order to address the ultimate question of discrimination.” Kovacevich

v. Kent State Univ., 224 F.3d 806, 825 (6th Cir. 2000); accord Imwalle v. Reliance Med. Prods., Inc.,

515 F.3d 531, 546 (6th Cir. 2008). Thus, it is incorrect to “disregard” a finding that bears on the

ultimate issue simply because it is also relevant to the prima facie case.

       The core problem with the majority’s holding is that it treats the question of whether Litton

suffered adverse discrimination as distinct from “the ultimate question of discrimination vel non.”

The two are one. Title VII states, “It shall be unlawful employment practice for an employer . . . to

fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment, because

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Litton v. Talawanda School District

of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2 (emphasis

added). In other words, Title VII does not ban mere discrimination, but only adverse discrimination.

Thus, the Supreme Court has explained that the “ultimate question” in Title VII cases is not just

whether discrimination occurred at all, but “whether the plaintiff has proven that the defendant

intentionally discriminated against [him.]” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993) (emphasis added; internal citation and quotation marks omitted); see also id. at 523-24 (“Title

VII [only] award[s] damages . . . against employers who are proven to have taken adverse

employment action by reason of (in the context of the present case) race.” (emphasis added)). It is,

to me, beyond obvious that Title VII applies only where there has been discrimination against an

individual. That requirement is not merely some vestigial prima facie element that fades into the

background as the case progresses—it is at the heart of the claim itself.

       This Court directly held as much in Fuhr v. School District of City of Hazel Park, 364 F.3d

753, 757 (6th Cir. 2004). There, as here, we confronted the question of whether proof that the

plaintiff suffered adverse employment action is part of the “ultimate question of discrimination.”

Id. We concluded that it was, holding that “th[e ultimate] question includes a determination of

whether there was evidence from which the jury could have concluded that the action of which Fuhr

complains was adverse to her.” Id. at 757-58 (emphasis added); see id. at 757 (“The ultimate

question of discrimination in this case is whether [the school] ‘failed or refused to hire or otherwise

discriminated against Fuhr with respect to her compensation, terms, conditions, or privileges of

employment, because of Fuhr’s sex.’” (quoting Title VII) (internal editing omitted)). Because Fuhr

had proved that she “suffer[ed] an adverse employment action,” we found that she had answered the

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Litton v. Talawanda School District

“actual question of discrimination” in her favor. Id. at 757-58. Fuhr’s analysis is directly applicable

to this case, and its holding essentially forecloses the majority’s.

         None of the cases that the majority cites to support its conclusion are to the contrary. Not

one states that the “ultimate question of discrimination” disregards whether the discrimination was,

in fact, adverse. At best, they are silent on the issue.1 More often, they directly contradict the

majority’s holding by explicitly requiring that discrimination be adverse in their formulation of the

ultimate question.2 For instance, far from sanctioning the majority’s course, the Supreme Court’s

decision in U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983), makes clear that

answering the “ultimate question” necessarily includes proof of adverse discrimination: “The factual

inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff.

In other words, is the employer . . . treating some people less favorably than others because of their




         1
          See, e.g., Moore v. Freeman, 355 F.3d 558, 562 (6th Cir. 2004); Cline v. Catholic Diocese of Toledo, 206 F.3d
651, 661 (6th Cir. 2000); Riser v. Target Corp., 458 F.3d 817, 820-21 (8th Cir. 2006).

         2
            See, e.g., Fuhr, 364 F.3d at 757; Suggs v. ServiceMaster Educ. Food Mgmt., 72 F.3d 1228, 1232 (6th Cir.
1996) (recognizing that the “ultimate question” is “whether the plaintiff carried her burden of proof of discriminatory
discharge.” (emphasis added)); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (holding that
the “one central question” at a Title VII trial is whether “the employee produced sufficient evidence for a reasonable jury
to find that . . . the employer intentionally discriminated against the employee on the basis of race, color, religion, sex,
or national origin[.]” (emphasis added)); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007) (finding
that, in a disability discrimination case, “an employee bears the ultimate burden of proving that he [wa]s . . .
discriminated against ‘because of’ [his] disability[.]” (emphasis added)); Collado v. United Parcel Serv., Co., 419 F.3d
1143, 1150-51 (11th Cir. 2005) (recognizing that Aiken’s “ultimate question of discrimination vel non” formulation
required asking “whether the defendant intentionally discriminated against the plaintiff.” (emphasis added)); Palasota
v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir. 2003) (holding in an age discrimination case that, even though a
plaintiff need not revisit his prima facie case after a trial on the merits, he still must show that he “has met his ultimate
burden of proving that the employer terminated him because of age.” (emphasis added)); Coffey v. Dobbs In’l Servs.,
Inc., 170 F.3d 323, 326 (2nd Cir. 1999) (finding that “the ultimate question of discrimination vel non” requires the
plaintiff to introduce “sufficient evidence to support a finding that [the defendant] intentionally discriminated against
her[.]” (emphasis added; internal citation, quotation marks, and edits omitted)).

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race, color, religion, sex, or national origin.” (emphasis added; citations and internal quotation

marks omitted).

       The majority’s holding also contradicts Title VII’s internal logic. Litton asserts, and the

majority agrees, that because whether there was any negative action is not actually a part of a claim

of “discrimination,” to be successful he need only show that his employer made a decision based on

his race. See Litton Br. at 16–17; Maj. Op. at 7. But under this reasoning, an employee could sue

for a neutral or even positive employment action. That is nonsensical. No employee could be told,

“We are promoting you because of your race,” respond with “Thank you very much,” and then

promptly sue because the employer based its decision on his race. Although co-employees of

another race who were not promoted might well have a case, see, e.g., Ricci v. DeStefano, 557 U.S.

557 (2009), the beneficiary of the discrimination would not.

       In sum, “the ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.” Noble v. Brinker Int’l,

Inc., 391 F.3d 715 (6th Cir. 2004) (quoting Hicks, 509 U.S. at 518) (emphasis added). Though

Litton produced enough evidence regarding adverse treatment to get his prima facie case past

summary judgment—which required only that he show that the evidence was not “so one-sided that

[Talawanda] must prevail as a matter of law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52

(1986)—he failed to meet his burden to prove the “ultimate question,” namely, that he was

discriminated against. It might be that a transfer from a prestigious job to a less prestigious one can

constitute a material adverse employment action. But Litton failed to prove as much here and the

jury found that he had failed. The majority should not relieve Litton of his burden, and it certainly

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should not grant him victory in the face of a jury verdict finding that he never proved that he suffered

adverse discrimination at all. The whole purpose of Title VII, as stated clearly by its text and

controlling case law, is preventing harmful discrimination, not the lamentable-but-benign

discrimination that the jury found Litton experienced.

        I respectfully dissent.




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       SILER, Judge, concurring. The dissent sets out a very reasonable result to this case.

However, I concur with the majority because I feel that the decision in EEOC v. Avery Dennison

Corp., 104 F.3d 858, 861 (6th Cir. 1997), precludes this court from considering the result proposed

by the dissent. I do not mean to say that a plaintiff in a Title VII case does not have the burden of

showing that he suffered adverse discrimination. He does, but the peculiar facts of this case come

under the umbrella of the Avery Dennison case. It is an anomaly that this is allowed, but that is my

interpretation of the decision in Avery Dennison.




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