       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0092A (6th Cir.)
               File Name: 00a0092a.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                 ;
                                  
LEIGH CLINE,
                                  
          Plaintiff-Appellant,
                                  
                                  
                                     No. 98-3527
           v.
                                  
                                   >
CATHOLIC DIOCESE OF               
                                  
                                  
TOLEDO; CATHOLIC

                                  
DIOCESAN SCHOOL OF
                                  
TOLEDO; ST. PAUL
                                  
ELEMENTARY SCHOOL;
HERBERT J. WILLMAN,               
                                  
                                  
Administrator St. Paul

       Defendants-Appellees. 
Elementary School,

                                  
                                 1
     Appeal from the United States District Court
      for the Northern District of Ohio at Toledo.
    No. 97-07472—James G. Carr, District Judge.
              Argued: October 25, 1999
          Decided and Filed: March 14, 2000
Before: JONES, MOORE, and GILMAN, Circuit Judges.




                           1
2    Cline v. Catholic Diocese                  No. 98-3527
     of Toledo, et al.

                   _________________
                        COUNSEL
ARGUED: David W. Leopold, DAVID WOLFE LEOPOLD
& ASSOCIATES, Cleveland, Ohio, for Appellant. Gregory
T. Lodge, SHUMAKER, LOOP & KENDRICK, Toledo,
Ohio, for Appellees. ON BRIEF: David W. Leopold,
DAVID WOLFE LEOPOLD & ASSOCIATES, Cleveland,
Ohio, for Appellant. Gregory T. Lodge, SHUMAKER,
LOOP & KENDRICK, Toledo, Ohio, for Appellees.
                ______________________
                 AMENDED OPINION
                ______________________
  NATHANIEL R. JONES, Circuit Judge. Plaintiff-
Appellant Leigh Cline (“Cline”) brought a pregnancy
discrimination suit against Defendants-Appellees, Catholic
Diocese of Toledo, et al., (“St. Paul”), under Title VII and
Chapter 4112 of the Ohio Revised Code. She also asserted
claims for breach of contract and promissory estoppel. Cline
appeals the summary judgment granted by the district court in
favor of St. Paul on all four claims. For the following
reasons, we reverse in part and affirm in part.
                             I.
  St. Paul Elementary and High School employed Leigh Cline
as a teacher from June 1994 until St. Paul decided not to
renew her contract after the 1995-1996 year. St. Paul is a
parish of the Roman Catholic Church located within the
Catholic Diocese of Toledo. The defendants-appellees in this
case include St. Paul Elementary School, the Catholic
Diocese of Toledo, the Catholic Diocesan School of Toledo
and Father Herbert J. Willman. Father Willman is
responsible for all religious matters within the parish,
including oversight of the parish schools.
No. 98-3527                   Cline v. Catholic Diocese       3
                                        of Toledo, et al.

   After graduating from Bowling Green in 1993, Cline began
teaching at St. Paul as an elementary substitute teacher. In
June 1994, she was awarded a full-time eighth-grade teaching
position for the 1994-1995 school year, assuming religion and
math class duties, and also teaching high school math and
coaching girls’ basketball. After her first year, the school
renewed Cline’s teaching contract for the 1995-1996 school
term and granted her request to teach the second grade.
Cline’s position as a second-grade teacher involved
significant training and ministry in the Catholic faith. She
provided daily religious instruction to students, took students
to Mass on a regular basis, and prepared her second-grade
students for the sacraments of Reconciliation and Holy
Communion. Cline acknowledged that her position at St.
Paul required her to “build and live Christian community,”
“integrate learning and faith,” and “instill a sense of mission”
in her students.
   For each of her two years at St. Paul, Cline’s employment
was governed by the standard St. Paul one-year employment
contract (titled the “Teacher-Minister Contract”) (“Contract”)
as well as the “Affirmations for Employment in the Diocese
of Toledo” (“the Affirmation”), both of which she signed for
each year. In addition to laying out basic terms of salary,
duration and other routine aspects of the position, the
Contract incorporates the provisions of the Affirmation
document as part of its terms and conditions. The
Affirmation outlines the ministerial responsibilities of the
“teacher/minister,” including the following provisions: 1) a
statement that the signer “believe[s] that the work of the
Catholic Church, [its agencies] and institutions has
characteristics that make it different from the work of other
agencies and institutions”; 2) a statement that the signer will
“work[] diligently to maintain and strengthen the Catholic
Church and its members,” and that “[b]y word and example,
[the signer] will reflect the values of the Catholic Church;” 3)
statements that the signer believes in “mutual trust” and “open
communication;” and 4) a statement by the signer that she “is
more than a professional.” J.A. at 96. The Contract also
4       Cline v. Catholic Diocese                        No. 98-3527        No. 98-3527                  Cline v. Catholic Diocese     29
        of Toledo, et al.                                                                                          of Toledo, et al.

incorporates the Teacher Handbook, which states that the                    question St. Paul’s proffered reason for her non-renewal. The
mission of the school is to “instill in our children the Gospel             law entitles her to make her case before a trier of fact. For
message of Jesus Christ.” J.A. at 277.1 Neither the Teacher’s               these reasons, we REVERSE the district court’s summary
Handbook nor the Affirmation explicitly states, nor was Leigh               judgment on the discrimination claims and AFFIRM on the
Cline ever expressly informed—in writing, orally or                         contract claims.
otherwise —that premarital sex comprised a violation of the
terms of either the Contract or the Affirmation.
  In the fall of 1995, Cline and her boyfriend (now husband)
Tom Cline met with Fr. Brickner, the associate pastor of St.
Paul Church, to discuss their intention to marry. The Clines
married at St. Paul in February 1996. In early March, Leigh
Cline informed the assistant principal, Stephen Schumm, and
other St. Paul teachers that she was pregnant. Around late
March or early April, Cline became visibly pregnant and
began to wear maternity clothing to school. Based on his
observation of Cline’s pregnancy, Fr. Willman2 correctly
concluded that she had engaged in premarital sex.
   On learning that she had engaged in premarital sex, St. Paul
officials did not immediately terminate Cline. Instead, Fr.
Willman considered “all options,” including immediate
termination. Ultimately, according to Fr. Willman, he
decided that the most appropriate course of action was to
permit Cline to continue teaching for the remainder of the
school year, without renewing her contract after the year had
finished. On May 3, 1996, Fr. Willman advised Cline in a
conference that “under the circumstances,” St. Paul “would


    1
      The Handbook describes the mission statement and broad
philosophy of the school, and lays out more specific matters of school
policy and administration, including describing teachers’ “religious
responsibilities” (e.g., teachers are “expected to uphold, by word and
example, all truths, values, and teachings of the Roman Catholic church,”
J.A. at 277), general “staff policies,” “staff certification and other
requirements,” and teacher salary and benefit provisions. J.A. at 277-94.
    2
     In her deposition, Cline acknowledged that her pregnancy resulted
from sex before her marriage.
28   Cline v. Catholic Diocese                     No. 98-3527     No. 98-3527                    Cline v. Catholic Diocese           5
     of Toledo, et al.                                                                                      of Toledo, et al.

reasons that Cline is entitled to pursue her federal               not renew her contract or hire her for the next school year.”
discrimination claim before a trier of fact, she is equally        According to Fr. Willman’s deposition, the “circumstances”
entitled to press on with her claim under Ohio’s Civil Rights      he was referring to were that “Leigh [] became pregnant
Act.                                                               before she got married.” J.A. at 536. In a formal letter
                                                                   explaining the decision not to renew her contract, sent May 4,
                               E.                                  Fr. Willman wrote:
   We agree with the district court that Cline’s contract claims     We expect our teachers to be good, strong role models
are meritless. The contract itself was for a one-year term, to       for our children. . . . It is stated in your contract, working
end on June 30, 1996, with no express or implied right to            agreement that ‘by word and example you will reflect the
renewal. Its terms were fulfilled. Her promissory estoppel           values of the Catholic Church.’ . . . [P]arents in the
claim also lacks merit. To win under a theory of promissory          community have serious concerns about a teacher who
estoppel, a plaintiff must show “detrimental reliance of the         marries and is expecting a child 5 months after the
promisee upon the false representations of the promissor.”           wedding date. We expect teachers and staff members at
Karnes v. Doctor’s Hosp., 51 Ohio St. 3d 139, 142 (1990).            St. Paul to observe the 6 month preparation time for
Although Cline generally alleged that she was unsuccessful in        marriage. . . . The Church does not uphold sexual
finding work immediately after she was informed of her non-          intercourse outside of marriage. We consider this a
renewal, she presented no evidence showing that she                  breach of contract/working agreement.
detrimentally relied on the school’s implication that her
contract would be renewed, or that she was injured by that         J.A. at 313. Cline continued teaching at St. Paul through the
reliance. Thus, the district court correctly granted summary       end of the school year. Her child was born on July 10, 1996.
judgment for St. Paul on her promissory estoppel claim.
                                                                      Cline disputes some of St. Paul’s evidence about the events
                              IV.                                  preceding her non-renewal. She argues that when Fr.
                                                                   Willman informed Cline of the decision not to renew, he only
 When faced with a similar fact situation in Ganzy, Judge          stated that it was due to her pregnancy so soon after marriage;
Weinstein of the Eastern District of New York concluded:           according to Cline, he did not mention premarital sex. She
                                                                   also presents other evidence contradicting Fr. Willman’s
  Plaintiff’s evidence . . . might lead a jury to find that the    assertion that, after discovering her pregnancy, the school
  religious reason--premarital sex--for the termination is a       decided to retain her only through the remainder of the 1995-
  pretext. Contrariwise, a jury might well find that [the          1996 school year. In particular, Cline received a glowing
  school’s decision was made] because [of] the school’s            Teacher Performance Evaluation on April 19,1996, nearly
  religious beliefs. . . . Or it might simply not believe the      two months after the school concluded that she had premarital
  Plaintiff’s version of the incident. . . . Under such            sex. In addition to noting her “successful” performance in
  circumstances, a decision by a cross-section of the              almost all of fifteen objective criteria, Principal Schumm
  community in a jury trial is appropriate.                        praised Cline for “adjust[ing] very well” to the “busy and
                                                                   changing year in regard to [her] classroom reassignment and
995 F. Supp. at 360-61. The situation in this case is no
different. Cline has introduced sufficient evidence to make
out a prima facie case, and sufficient evidence to call into
6       Cline v. Catholic Diocese                    No. 98-3527       No. 98-3527                   Cline v. Catholic Diocese     27
        of Toledo, et al.                                                                                      of Toledo, et al.

personal life.” J.A. at 183.3 Finally, the evaluation implied          dispute fly in the face of the Supreme Court’s warning that
that a contract renewal would be forthcoming for the                   the district court must not “weigh the evidence and determine
following year, concluding: “Your class of 2nd grade students          the truth of the matter” at the summary judgment stage.
is well managed and respectful. I would expect continued               Anderson, 477 U.S. at 249.
growth for the 1996-97 school year.” J.A. at 183.
                                                                          Finally, St. Paul’s frequent reliance on Boyd, which
  On October 11, 1996, Cline filed a charge of discrimination          concluded that Boyd’s claim did not survive the rebuttal
with the Equal Employment Opportunity Commission. The                  stage, does not help its argument here; indeed, that case
EEOC issued a Notice of Right to Sue, and on June 17, 1997,            bolsters Cline’s arguments. In Boyd, this Court did not
Cline filed her complaint in the district court claiming illegal       review an order of summary judgment, but affirmed a bench
sex and pregnancy discrimination under Title VII, 42 U.S.C.            trial decision. Its affirmance on the merits therefore provides
§ 2000e et seq., and Chapter 4112 of the Ohio Revised Code.            no support for St. Paul’s arguments that Cline is not entitled
She also brought claims for breach of contract and promissory          to a trial at all. The fact that the parties in this case have
estoppel. On January 30, 1998, defendants filed their Motion           waged vigorous factual disputes over the central factors the
for Summary Judgment. Finding that Cline had failed to                 Boyd Court considered in its holding—namely, whether the
make out a prima facie case of discrimination, the court               school applied its standards in a discriminatory manner, and
granted summary judgment on April 3, 1998. This timely                 whether the school’s policy was based on pregnancy or
appeal followed.                                                       premarital sex—underscores that in this case there is indeed
                                                                       a genuine dispute over the most important material facts.
                                II.                                    This further highlights the district court’s error in granting
                                                                       summary judgment.
   We review de novo a district court’s grant of summary
judgment, using the same Rule 56(c) standard as the district                                         D.
court. See Terry Barr Sales Agency, Inc. v. All-Lock Co., Inc.,
96 F.3d 174, 178 (6th Cir. 1996). Under that standard,                   We also reverse the district court’s decision with respect to
summary judgment is appropriate where “the pleadings,                  the discrimination claim under Ohio law. Ohio courts utilize
depositions, answers to interrogatories, and admissions on             the same McDonnell Douglas analysis described supra when
file, together with the affidavits, if any, show that there is no      analyzing discrimination claims brought under the Ohio Civil
genuine issue as to any material fact and that the moving party        Rights Act, Ohio Rev. Code Ann. § 4112. See Ohio Civil
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.         Rights Comm'n v. Ingram, 630 N.E.2d 669, 672 (Ohio 1994)
56(c). In deciding a motion for summary judgment, we assess            (holding that federal caselaw interpreting and applying Title
the factual evidence and draw all reasonable inferences in             VII is generally applicable to cases involving Chapter 4112);
favor of the non-moving party. See National Enterprises, Inc.          Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio
v. Smith, 114 F.3d 561, 563 (6th Cir. 1997). Merely alleging           Civil Rights Comm’n, 421 N.E. 128, 131-32 (Ohio 1981)
the existence of a factual dispute is insufficient to defeat a         (applying McDonnell Douglas). This is no different for
                                                                       discrimination claims brought against sectarian schools. See
                                                                       Basinger v. Pilarczyk, 707 N.E.2d 1149, 1150-51 (Ohio Ct.
                                                                       App. 1997) (stating that the McDonnell Douglas analysis
    3
      Father Willman stated in his deposition that he had read these   applies when teacher sues a sectarian school). For the same
positive evaluations.
26       Cline v. Catholic Diocese                      No. 98-3527       No. 98-3527                      Cline v. Catholic Diocese          7
         of Toledo, et al.                                                                                           of Toledo, et al.

fact as to whether St. Paul enforces its policy solely by                 summary judgment motion; rather, there must exist in the
observing the pregnancy of its female teachers, which would               record a genuine issue of material fact. See Anderson v.
constitute a form of pregnancy discrimination.                            Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986).
   No doubt, St. Paul may have sharp retorts to many of                                                   III.
Cline’s factual claims. Indeed, many of its responses could
well convince a trier of fact of its case. But at this stage in the                                        A.
trial, the district court’s and our role is not “to weigh the
evidence and determine the truth of the matter,” Anderson,                   Title VII’s prohibition on employment practices that
477 U.S. at 249, but “to determine whether there is a genuine             discriminate “because of [an] individual’s sex,” 42 U.S.C.
issue for trial.” Id. To do so, the court must look at the                § 2000e-2(a)(1), applies with all its force to employers who
evidence and make all reasonable inferences in the light most             discriminate4 on the basis of pregnancy. See 42 U.S.C.
favorable to Cline. See National Enterprises, Inc., 114 F.3d              § 2000e(k); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 89-90
at 563. If, in that light, “the evidence is such that a reasonable        (1983); Newport News Shipbuilding & Dry Dock Co. v.
jury could return a verdict for the nonmoving party,” a                   EEOC, 462 U.S. 669 (1983); Boyd v. Harding Academy of
trialCand not summary judgmentCis warranted. Anderson,                    Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996) (“Congress
477 U.S. at 248. Observed in a light most favorable to her,               manifested its belief that discrimination based on pregnancy
Cline has clearly offered evidence sufficient to leap this                constitutes discrimination based on sex.”). Thus, a claim of
hurdle.                                                                   discrimination on the basis of pregnancy “must be analyzed
                                                                          in the same manner as any other sex discrimination claim
  The district court’s contrary conclusion reflects an errant             brought pursuant to Title VII.” Boyd, 88 F.3d at 413. Such
approach to the summary judgment stage. At each step of its               a claim requires that the plaintiff first establish a prima facie
analysis, rather than drawing inferences in Cline’s favor, the            case of unlawful discrimination by showing that 1) she was
court credited St. Paul’s account over Cline’s. For instance,             pregnant, 2) she was qualified for her job, 3) she was
the court rebuts Cline’s statements that conversations with Fr.           subjected to an adverse employment decision, and 4) there is
Willman centered on her pregnancy by finding that Fr.                     a nexus between her pregnancy and the adverse employment
Willman “has explained that plaintiff’s pregnancy was                     decision. See id. In a termination case such as this one, a
significant only because it accurately demonstrated her                   plaintiff meets the second prong by showing that she was
decision to have premarital sex.” J.A. at 338. This                       performing “at a level which met [her] employer’s legitimate
disagreement is a crucial dispute over a key material fact;               expectations.” McDonald v. Union Camp Corp., 898 F.2d
rather than reserving it for the trier of fact to resolve, the court      1155, 1160 (6th Cir. 1990). If the plaintiff successfully
has favored the school’s explanation.       St. Paul asks us to do        establishes a prima facie case, the burden of production shifts
the same throughout its brief.9 This and other examples of                to the defendant to articulate a “legitimate, nondiscriminatory
crediting St. Paul’s factual contentions amid a genuine factual           reason” for its actions. Boyd, 88 F.3d at 413 (citing Texas
                                                                          Dep’t of Community Affairs v. Burdine, 450 U.S. 238, 253

     9                                                                        4
      On a number of occasions, St. Paul simply favors Fr. Willman’s           According to Section 2000e(k), the term “because of sex” means,
testimony over Cline’s. See, e.g., St. Paul’s Br. at 19-24. But this we   among other things, “on the basis of pregnancy, childbirth, or related
cannot do on summary judgment.                                            medical condition.” 42 U.S.C. § 2000e(k).
8     Cline v. Catholic Diocese                     No. 98-3527       No. 98-3527                    Cline v. Catholic Diocese      25
      of Toledo, et al.                                                                                        of Toledo, et al.

(1981)). If the defendant fails to satisfy this burden, plaintiff     those relations are revealed through pregnancy. See also
prevails. If the defendant satisfies this burden, then the            Vigars v. Valley Christian Ctr., 805 F. Supp. 802, 808 (N.D.
presumption of intentional discrimination is negated; the             Cal. 1992) (stating that an anti-premarital sex policy violates
employee must then prove by a preponderance of the evidence           Title VII if it is enforced solely through observing pregnancy,
that the defendant intentionally discriminated against her.           because such a policy subjects “only women” to termination
She may do this by showing that the “nondiscriminatory”               “for something that men would not be, and that is sex
reasons the employer offered were not credible, but were              discrimination, regardless of the justification put forth for the
merely a pretext for intentional discrimination. See id.; see         disparity”). In other words, a school can not use the mere
also St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511              observation or knowledge of pregnancy as its sole method of
(1993) (stating that the factfinder’s “disbelief of the reasons       detecting violations of its premarital sex policy.
put forward by the defendant” may, “together with the
elements of the prima facie case, suffice to show intentional            In assessing Cline’s attempts to show pretext, the district
discrimination”).                                                     court far too hastily sided with St. Paul. Factually, this case
                                                                      is a tightly-waged battle. Cline presented a variety of
   The Congressional drafters of the 1964 Civil Rights Act            concrete evidence casting into doubt the “reason” St. Paul
recognized the sensitivity surrounding the status of religious        profferedCthat it decided not to renew her contract because
groups and institutions. Thus, while Title VII exempts                she had violated its blanket policy against premarital sexCand
religious organizations for “discrimination based on religion,”       raising an issue of fact as to whether the treatment was due to
it does not exempt them “with respect to all discrimination           her pregnancy. Most importantly, she presented evidence that
. . . . [] Title VII still applies . . . to a religious institution   the school continued to view her as sufficiently qualified to
charged with sex discrimination.” Boyd, 88 F.3d at 413; see           teach: the complimentary evaluation (mentioning both her
also Rayburn v. General Conference of Seventh-Day                     “personal” and “professional” life), its consideration of other
Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (“Title VII           “options” for some time before opting to terminate her, and
does not confer upon religious organizations a license to make        Father Willman’s suggestion in the record that “things might
[hiring decisions] on the basis of race, sex, or national             have worked out differently” had Cline notified him of her
origin.”). Because discrimination based on pregnancy is a             pregnancy sooner. She also produced some evidence showing
clear form of discrimination based on sex, religious schools          that the school may have focused more on the fact of her
cannot discriminate based on pregnancy. See Boyd, 88 F.3d             pregnancy than her sexual activity. For instance, she testified
at 413-14; Ganzy v. Allen Christian Sch., 995 F. Supp. 340,           to conversations and produced statements in which school
349 (E.D.N.Y. 1998) (stating that restrictions on pregnancy           officials explicitly discussed her “pregnancy” rather than her
“are not permitted because they are gender discriminatory by          sexual actions. Finally, Cline adduced evidence that the
definition”); Dolter v. Wahlert High Sch., 483 F. Supp. 266,          policy was not applied equally among men and women. St.
270 (N.D. Iowa 1980) (stating that a school has violated Title        Paul officials acknowledged in their depositions that Cline’s
VII if it terminates a plaintiff for pregnancy alone). In suits       pregnancy alone had signaled them that she engaged in
like Cline’s, courts have made clear that if the school’s             premarital sex, and that the school does not otherwise inquire
purported “discrimination” is based on a policy of preventing         as to whether male teachers engage in premarital sex. At oral
nonmarital sexual activity which emanates from the religious          argument, counsel for St. Paul conceded that it was only
and moral precepts of the school, and if that policy is applied       Cline’s pregnancy that made it evident that she had engaged
equally to its male and female employees, then the school has         in premarital sex. These admissions raise an issue of material
24    Cline v. Catholic Diocese                  No. 98-3527      No. 98-3527                         Cline v. Catholic Diocese              9
      of Toledo, et al.                                                                                         of Toledo, et al.

Ganzy, 995 F. Supp. at 359 (stating that the defendant-school     not discriminated based on pregnancy in violation of Title
“discharge[d]” its burden of production when it “stated that      VII. See Boyd, 88 F.3d at 414-15; Ganzy, 995 F. Supp. at
Ganzy violated its religious teachings by engaging in             344; Dolter, 483 F. Supp. at 270.
premarital sexual activity”). As in those cases, St. Paul has
“simply explain[ed] what [it] has done [and] produce[d]             The central question in this case, therefore, is whether St.
evidence of legitimate nondiscriminatory reasons.” Burdine,       Paul’s nonrenewal of Cline’s contract constituted
450 U.S. at 256.                                                  discrimination based on her pregnancy as opposed to a
                                                                  gender-neutral enforcement of the school’s premarital sex
     (b) Showing of Pretext.                                      policy. While the former violates Title VII, the latter does
                                                                  not. This is primarily a factual battle, to be resolved on
  The presumption of discrimination having been rebutted,         summary judgment only if Cline presented insufficient
“the factual inquiry proceeds to a new level of specificity,”     evidence to create a genuine dispute over the material facts.
with Cline shouldering the burden of “demonstrat[ing] that        Because we find that Cline put forth sufficient evidence to
the proffered reason was not the true reason for the              create such a dispute, we hold that summary judgment was
employment decision.” Burdine, 450 U.S. at 255-56. This           inappropriate.
burden “merges with the ultimate burden of persuading the
court that she has been the victim of intentional                                                      B.
discrimination.” Id. Once again, therefore, Cline must
answer the ultimate question: did St. Paul discriminate against     The district court granted St. Paul’s motion for summary
her “because she was pregnant,” or “for engaging in sex           judgment, agreeing with the school’s arguments on all four of
outside of marriage” in violation of the school’s moral code?     Cline’s claims.
Boyd, 88 F.3d at 414; see also Ganzy, 995 F. Supp. at 349;
Dolter, 483 F. Supp. at 270.                                         First, the court found that Cline failed to make a prima facie
                                                                  case of discrimination under McDonnell Douglas because she
   Because Cline enjoys a “full and fair opportunity” to make     did not satisfy the second    prong required: showing she was
this showing, Burdine, 450 U.S. at 256, she can pursue            qualified for the job.5 By engaging in premarital sex, she had
several avenues of discovery. First, she can show intentional     violated both the Contract and Affirmation, and her promise
discrimination directly by showing “that a discriminatory         under them “to live according to the principles of the Catholic
reason more likely motivated the employer” than the reason        Church.” J.A. at 332. Her own actions therefore rendered her
the employer proffered. Id. at 256. Second, she can indirectly    unqualified for the teaching position. In making this
show “pretext” by showing “that the employer’s proffered          conclusion, the district court reasoned that cases like Dolter,
explanation is unworthy of credence.” Id. In the pregnancy        which rejected motions for summary judgment for similar
discrimination context in particular, Cline also may show that    pregnancy discrimination claims, were distinguishable
St. Paul enforced its premarital sex policy in a discriminatory   because Cline had offered no proof that the premarital sex
mannerCagainst only pregnant women, or against only               policy applied differently to men and women. In Dolter, such
women. See Boyd, 88 F.3d at 414. This is because a school         a showing was made.
violates Title VII if, due purely to the fact that “[w]omen can
become pregnant [and] [m]en cannot,” Ganzy, 995 F. Supp.
                                                                      5
at 344, it punishes only women for sexual relations because             The district court stated that the first, third, and fourth prongs were
                                                                  satisfied. This is undisputed by St. Paul.
10       Cline v. Catholic Diocese                         No. 98-3527        No. 98-3527                   Cline v. Catholic Diocese      23
         of Toledo, et al.                                                                                            of Toledo, et al.

   The district court next reasoned that even if Cline had made                               2. Production and Rebuttal
out a prima facie case, she had still failed to show that St.
Paul’s “nondiscriminatory” reason for the non-renewal was a                     Because Cline has successfully made a prima facie
mere pretext for pregnancy discrimination. In concluding so,                  showing, we next must consider the rebuttal phase: did St.
the court parsed through the evidence of Fr. Willman’s                        Paul satisfy its burden of producing a nondiscriminatory
statements, finding that they demonstrated that “it was [not]                 reason for the non-renewal, and can Cline meet her burden of
pregnancy [] that motivated the termination,” but the fact of                 establishing that this reason was a mere pretext? The district
premarital sex. J.A. at 338. The court distinguished the                      court concluded that St. Paul satisfied its burden of
Ganzy case – where the district court refused to grant a                      articulating a nondiscriminatory reason. It also concluded that
motion of summary judgment for similar circumstances – by                     Cline did not demonstrate the existence of a genuine issue of
the fact that Ganzy had been able to show more decisively                     material fact as to whether that reason was pretextual. While
that the discrimination was rooted in her pregnancy.                          we agree with the first conclusion, we disagree with the
                                                                              second.
  The court also set aside Cline’s breach of contract and
promissory estoppel claims. The contract claim failed                             (a) Burden of Production
because the contract was “fully performed,” J.A. at 341,
while the promissory estoppel claim failed because Cline did                     First, we agree with the district court that St. Paul
not show any detrimental reliance.                                            successfully articulated a nondiscriminatory reason for its
                                                                              actions. The burden on St. Paul “is to rebut the presumption
                                   C.                                         of discrimination by producing evidence that the plaintiff was
                                                                              rejected . . . for a legitimate, nondiscriminatory reason.”
  Looking anew at the record, we conclude that the district                   Burdine, 450 U.S. at 254. This is a burden of production;
court fundamentally misapplied the McDonnell Douglas test.                    although “[t]he defendant need not persuade the court that it
Before we explain the nature of the court’s errors, we recite                 was actually motivated by the proffered reasons,” it must raise
the “first principles” of McDonnell Douglas’s burden-shifting                 “a genuine issue of fact as to whether it discriminated against
regime. The three-part inquiry provides “an allocation of the                 the plaintiff.” Id. To do this, “the defendant must clearly set
burden of production and an order for the presentation of                     forth . . . the reasons for the plaintiff’s rejection,” and that
proof in Title VII discriminatory-treatment cases.” Hicks, 509                explanation “must be legally sufficient to justify a judgment
U.S. at 506; see Watson v. Fort Worth Bank & Trust, 487                       for the defendant.” Id. at 255.
U.S. 977, 986 (1988) (stating that the McDonnell Douglas
regime is “meant only to aid courts   and litigants in arranging                St. Paul satisfied this burden by asserting that it did not
the presentation of evidence”).6 The framework is designed                    renew Cline’s contract because she violated her clear duties
                                                                              as a teacher by engaging in premarital sex. This conclusion
                                                                              squares with Boyd and Ganzy, where schools articulated
     6                                                                        similar reasons as their motivation for termination. See Boyd,
      The Supreme Court has recognized that “as a practical matter,” the      88 F.3d at 414 (agreeing with the district court’s conclusion
“real-life sequence of a trial” does not necessarily comport with this        that the defendant “articulated a legitimate, nondiscriminatory
model. Hicks, 509 U.S. at 510 n.3. Indeed, it acknowledged that to avoid
summary judgment, “the defendant feels the ‘burden’ not when the              reason by stating that it fired plaintiff Boyd not because she
plaintiff’s prima facie case is proved, but as soon as evidence of it is      was pregnant, but for engaging in sex outside of marriage”);
introduced.” Id. In his dissent in Hicks, Justice Souter also discussed the
22    Cline v. Catholic Diocese                    No. 98-3527      No. 98-3527                          Cline v. Catholic Diocese            11
      of Toledo, et al.                                                                                            of Toledo, et al.

regarding the employer’s true motives for making the                to sharpen the inquiry to a “level of specificity” which best
challenged employment decision.” Walker v. Mortham, 158             allows the fact-finder to resolve the “ultimate question”:
F.3d 1177, 1192 (11th Cir. 1998). Requiring a rebuttal by the       whether the plaintiff established by a preponderance of the
defendant “frame[s] the factual issue with sufficient clarity so    evidence that the defendant intentionally discriminated
that the plaintiff will have a full and fair opportunity to         against her. United States Postal Serv. Bd. of Governors v.
demonstrate pretext.” Burdine, 450 U.S. at 255-56. Without          Aikens, 460 U.S. 711, 715 (1983); see Burdine, 450 U.S. at
a clearly articulated reason,                                       255 n.8 (“[T]he allocation of burdens and the creation of a
                                                                    presumption by the establishment of a prima facie case is
  the plaintiff does not know whether the employment                intended progressively to sharpen the inquiry into the elusive
  decision was made upon his work record or upon an                 factual question of intentional discrimination.”); Kent County
  illegitimate racial preference. His offer of proof is             Sheriff’s Ass’n v. County of Kent, 826 F.2d 1485, 1493 (6th
  somewhat thwarted by this confusion. A plaintiff cannot           Cir. 1987). While the discrete stages are meant to facilitate
  disprove as a cause for his failure to be rehired a source        litigants and courts in reaching and resolving that ultimate
  of dissatisfaction of which he is unaware.                        question of discrimination, when misapplied, they tend to
                                                                    distract courts from the central issue. This is precisely what
Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 97 (6th Cir.          happened below.
1982) (emphasis added). Thus, a court distorts the
McDonnell Douglas framework by requiring a plaintiff to                                   1. The Prima Facie Case
show that the reason for which she was terminated is
nondiscriminatory before even requiring the defendant to              First, the district court improperly rejected Cline’s prima
articulate that reason. This is precisely what the district court   facie case. In fact, the court’s analysis of the second prong
did in this case.                                                   improperly precluded Cline from being able to challenge the
                                                                    policy she claims to be discriminatory. This contravenes the
   Without considering the “ultimate question” of whether St.       very purpose for the prima facie stage set out in McDonnell
Paul’s premarital sex policy was applied in a discriminatory        Douglas and Burdine.
way, or whether it was the true reason the school terminated
Cline, there is little doubt that Cline made a prima facie case
showing that she was meeting St. Paul’s legitimate
expectations. “In order to show that [s]he was qualified, [the
plaintiff] must prove that [s]he was performing . . . ‘at a level
which met [her] employer’s legitimate expectations.’”               practical realities of pre-trial and trial structure. “The [McDonnell
                                                                    Douglas] analysis of burdens describes who wins on various
McDonald, 898 F.2d at 1160 (citation omitted). The evidence         combinations of evidence and proof. It may or may not also describe the
Cline presented of her two-year record of success, and in           actual sequence of events at trial. In a bench trial, for example, the parties
particular her positive April 1996 evaluation, is more than         may be limited in their presentation of evidence until the court has
enough to meet this standard. The fact that the school              decided whether the plaintiff has made his prima facie showing. But the
allowed her to keep teaching for the remainder of the year          court also may allow in all the evidence at once.” Id. at 533 n.9 (Souter,
                                                                    J., dissenting). Nonetheless, the Supreme Court has continued to insist
further bolsters this showing. She thus successfully made out       that courts examine evidence as if it is introduced through the three-part
a prima facie case.                                                 sequence described in McDonnell Douglas, although a district court will
                                                                    be aware of a defendant’s nondiscriminatory reason before moving
                                                                    beyond plaintiff’s prima facie stage.
12    Cline v. Catholic Diocese                     No. 98-3527       No. 98-3527                         Cline v. Catholic Diocese            21
      of Toledo, et al.                                                                                             of Toledo, et al.

   The prima facie requirement for making a Title VII claim              Under Aikens, Hicks and this Court’s caselaw applying
“is not onerous,” Burdine, 450 U.S. at 253, and poses “a              those decisions, Cline is thus correct when she argues that the
burden easily met.” Wrenn v. Gould, 808 F.2d 493, 500 (6th            district court wrongly assessed whether she made a sufficient
Cir. 1987). The prima facie phase “merely serves to raise a           prima facie showing. The district court compounded this
rebuttable presumption of discrimination by ‘eliminat[ing] the        error when it stated that a plaintiff in Cline’s position could
most common nondiscriminatory reasons for the [employer’s             show she was qualified if she “were able to demonstrate
treatment of the plaintiff].’” Hollins v. Atlantic Co., 188 F.3d      some basis for a finding that the job qualifications” were
652, 659 (6th Cir. 1999)(quoting Burdine, 450 U.S. at 253-            discriminatory. J.A. at 335. In other words, the court would
54). It is “only the first stage of proof in a Title VII case,” and   require plaintiffs to show in their prima facie case that the
its purpose is simply to “force [a] defendant to proceed with         reason for which their employer terminated them is itself
its case.” EEOC v. Avery Dennison Corp., 104 F.3d 858,                discriminatory. This is errant for two related reasons. First,
861-62 (6th Cir. 1997). This division of intermediate                 once a defendant has articulated and proffered evidence that
evidentiary burdens is not meant to stymie plaintiffs, but            it terminated a plaintiff because she failed to meet certain
simply serves to “bring the litigants and the court                   expectations, it has by definition already taken the inquiry
expeditiously and fairly to the ultimate question.” Burdine,          beyond the prima facie stage with respect to that reason.
450 U.S. at 253.                                                      While the plaintiff must still show that she met her
                                                                      employer’s legitimate expectations to get beyond the prima
   The district court ignored these precepts when it held that        facie stage, her attempts to rebut the defendant’s reason
Cline failed to make a prima facie showing. In addition to            comprise part of the ultimate factual questionCthe third stage
setting a burden far too high, it conflated the distinct stages of    of McDonnell Douglas. Of course, if she fails to rebut the
the McDonnell Douglas inquiry by using St. Paul’s                     defendant’s nondiscriminatory reason, she loses the suit on
“nondiscriminatory reason” as a predicate for finding Cline to        that ground—but it is technically incorrect to rule that she
have failed to make a prima facie case. The court found Cline         failed at the prima facie stage. Second, forcing plaintiffs to
“unqualified” under prong two of the prima facie case                 make such a proof at the prima facie stage defies the very
because she had not lived up to the promises she made to              purpose of the production stage and the overall sequence of
“exemplify the moral values taught by the Church.” J.A. at            McDonnell Douglas. The burden-shifting analysis of
332. Because her pregnancy due to premarital sex meant that           McDonnell Douglas exists, in part, to resolve “the disparity
“she no longer met all the qualifications of her position,” even      in access to information between employee and employer
strong evidence as to her satisfactory performance (ie., her
evaluations and teaching record) could not overcome these
moral failings. J.A. at 333. This analysis improperly
imported the later stages of the McDonnell Douglas inquiry            49; McDonald, 898 F.2d at 1162. Failure at the latter stage is precisely
into the initial prima facie stage. As discussed infra, St. Paul      the result this holding would mandate. This point should alleviate St.
alleges that it did not renew Cline’s contract because she            Paul’s underlying concern, exemplified by its driver’s license
violated its premarital sex policy, which constituted part of         hypothetical, that this decision will allow meritless discrimination suits to
                                                                      clog the federal docket. This is not the case. The approach set forth in
the broader ministerial requirements of being a St. Paul              this opinion will dispose of meritless cases as expeditiously as the
teacher; conversely, Cline argues that this rebuttal is a pretext     approach undertaken by the district court. Plaintiffs who lack evidence
for discrimination. Rather than resolve this debate at the            undermining the reason articulated for their termination will falter on
prima facie stage, McDonnell Douglas requires that the                summary judgment after a set amount of discovery—just as before, and
                                                                      just as in Ang and McDonald.
20       Cline v. Catholic Diocese                         No. 98-3527        No. 98-3527                    Cline v. Catholic Diocese       13
         of Toledo, et al.                                                                                             of Toledo, et al.

precedent dictate that the district court reserve for the rebuttal            district court consider this dispute at the inquiry’s third stage,
stage its assessment of the justification St. Paul “produced” to              when its role is to decide the “ultimate question” of
explain its decision not to renew Cline. Here, the court has                  discrimination. In other words, when assessing whether a
improperly applied   that justification to defeat Cline at the                plaintiff has met her employer’s legitimate expectations at the
prima facie stage.8                                                           prima facie stage of a termination case, a court must examine
                                                                              plaintiff’s evidence independent of the nondiscriminatory
                                                                              reason “produced” by the defense as its reason for terminating
     8
     St. Paul argues in its petition for rehearing that our decision
                                                                              plaintiff. The district court clearly failed to do this,
“conflicts with a well-established line of Sixth Circuit precedent.” St.      improperly conflating the distinct stages of the McDonnell
Paul’s Pet. at 2. We disagree.                                                Douglas inquiry.
     This opinion in fact adheres to the fundamental rule of law emerging        While St. Paul argued in its petition for rehearing that this
from the cases which St. Paul puts forth: that a plaintiff must show that     requirement defies Circuit law, we believe that this approach
she was meeting her employer’s legitimate expectations and was                not only comports with circuit caselaw, but is the only one
performing to her employer’s satisfaction. See, e.g., Warfield v. Lebanon
Correctional Inst., 181 F.3d 723, 729 (6th Cir. 1999); Ang v. Procter &       that remains faithful to the purpose and structure of
Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991); McDonald , 898 F.2d at         McDonnell Douglas. Aikens best illuminates this point.
1160. It also adheres to the long line of cases properly applying the rule    Aikens reminds us that once a defendant “responds to the
from Aikens. See, e.g., Avery Dennison Corp., 104 F.3d at 860;                plaintiff’s proof by offering evidence of the reason for the
Brownlow, 867 F.2d at 963; Fields v. Bolger, 723 F.2d 1216, 1219 (6th         plaintiff’s rejection,” whether or not the plaintiff made out a
Cir. 1984).
                                                                              prima facie case “is no longer relevant.” 460 U.S. at 714; see
     We also do not believe that this opinion varies from any firm or         Avery Dennison, 104 F.3d at 860-63. Rather, by producing
uniformly applied legal principle guiding the determination of whether a      evidence of its nondiscriminatory reason, a defendant has
plaintiff has met her employer’s expectations. Indeed, due in part to the     moved the inquiry to the ultimate factual question of whether
variety of factual situations that arise in discrimination cases, circuit     its action against the plaintiff was discriminatory or not, and
panels appear to have utilized approaches which are at odds. Compare,
e.g., Ang, 932 F.3d at 548-49; and McDonald, 898 F.2d at 1159-60, with        plaintiff thereafter enjoys the opportunity to rebut that reason
Barnett, 153 F.3d at 341 (treating failure to pass a basic test as the        and show discrimination. At this point, a district court cannot
legitimate, nondiscriminatory reason for plaintiff’s termination, rather      resolve the case by returning to the prima facie stage. See
than a factor making her unqualified); Danielson, 938 F.2d at 683             Aikens, 460 U.S. at 717; Avery Dennison, 104 F.3d at 862-63.
(treating “poor work performance” as the legitimate, nondiscriminatory        To do so would mistakenly “apply[] legal rules which were
reason, and not as a prima facie factor); and Mills, 800 F.2d at 638-39       devised to govern ‘the basic allocation of burdens and order
(considering unsatisfactory ratings as defendant’s “production,” and not
at prima facie stage). This opinion is thus an effort to add clarity and      of presentation of proof’ in deciding this ultimate question.”
consistency to what has been an inconsistent approach to assessing the        Aikens, 460 U.S. at 716 (quoting Burdine, 450 U.S. at 252).
legitimate expectations standard. It does so by faithfully applying the       This circuit has long recognized the importance of Aikens in
logic from cases that preceded the divergence in those approaches, in         structuring appellate and district court review of
addition to clear and binding Supreme Court caselaw.                          discrimination decisions. See, e.g., Avery Dennison Corp.,
     Finally, not only does this case adhere to the underlying legal          104 F.3d at 860; Brownlow v. Edgecomb Metals Co., 867
standard espoused in cases such as Ang and McDonald, but the more fine-       F.2d 960, 963 (6th Cir. 1989); Simpson v. Midland-Ross
tuned approach we have put forth would change neither the outcome nor         Corp., 823 F.2d 937, 942 (6th Cir. 1987); Fields v. Bolger,
the economy of such cases. Plaintiffs in those cases lost at both the first   723 F.2d 1216, 1219 (6th Cir. 1984).
and third stages of McDonnell Douglas inquiry. See Ang, 932 F.2d 548-
14    Cline v. Catholic Diocese                    No. 98-3527      No. 98-3527                    Cline v. Catholic Diocese      19
      of Toledo, et al.                                                                                      of Toledo, et al.

  This case simply requires that the rule from Aikens be            for plaintiff’s termination, rather than a factor making her
applied in the pre-trial context. On a motion for summary           unqualified); Danielson v. City of Lorain, 938 F.2d 681, 683
judgment, a district court considers whether there is sufficient    (6th Cir. 1991) (treating “poor work performance” as the
evidence to create a genuine dispute at each stage of the           legitimate, nondiscriminatory reason, and not as a prima facie
McDonnell Douglas inquiry. The court first determines if a          factor); Mills v. Ford Motor Co., 800 F.2d 635, 638-39 (6th
plaintiff has put forth sufficient evidence for a reasonable jury   Cir. 1986) (considering unsatisfactory ratings as defendant’s
to find her to have met the prima facie requirements,               “production,” and not at prima facie stage); McRory v. Kraft
including whether she has met the legitimate expectations of        Food Ingredients, 98 F.3d 1342, 1996 WL 571146 at *4 (6th
her employer. It performs the same function with respect to         Cir. 1996) (unpublished) (looking only at a plaintiff’s
defendant’s production of evidence, and again for the               successful work record prior to the onset of poor work
plaintiff’s response to that production. For the same reason        performance to find the prima facie stage satisfied, worried
that it is inappropriate under Aikens for the district court to     that otherwise, “most plaintiffs in discrimination cases will be
revisit the prima facie stage using defendant’s evidence of its     barred from pursuing their claims before ever getting to the
nondiscriminatory reason, it is equally inappropriate for the       employer’s conduct”); Thompson v. Union Carbide Corp.,
district court in the pre-trial stage to rely on the                815 F.2d 706, 1987 WL 36807, at *3-*4 (6th Cir. 1987)
nondiscriminatory reason for termination to find plaintiff’s        (unpublished) (affirming decision by district court to move to
prima facie case inadequate. This is true even if that              the “ultimate issue” once defendant offered evidence of
“production” evidence happens to show that, in the                  reasons for termination, rather than scrutinizing the prima
employer’s view, the plaintiff was not meeting its legitimate       facie stage); Wilson v. Advance Mortgage Corp., 798 F.2d
expectations for the position at issue. Aikens instead              1417, 1986 WL 17234 at *3 (6th Cir. 1986)
mandates that at least with respect to the employer’s proffered     (unpublished)(castigating a district court’s prima facie
nondiscriminatory reason, the prima facie case is no longer         requirement that a plaintiff rebut the “causes” for her
relevant—it has “dropped out” of the inquiry. The plaintiff         demotion as invalid because it required her “to prove her
thus enjoys the full opportunity to show that reason to be          entire case at the first stage” and because the company’s
pretextual as part of the third stage of McDonnell Douglas.         justifications “are of the type generally considered in the
While a plaintiff may very well lose on summary judgment            second stage of the Title VII inquiry”).
because she fails to proffer evidence on that “ultimate issue,”
a court misapplies the structure of McDonnell Douglas by               Unsurprisingly, precedent within the pregnancy
holding that she fails at the prima facie stage due to              discrimination context also stands against St. Paul.
defendant’s nondiscriminatory reason.                               Consistent with the analysis above, the legal battles in cases
                                                                    like this have largely been waged at the rebuttal phase, not the
  We need look no further than some of the most important           prima facie phase. In Boyd, the teacher’s qualification for the
Supreme Court cases in this area Cscrutinizing not only what        job was simply not a contested issue even though she violated
the Court said, but the trials which it reviewedCto see that        the school’s extramarital sex policy. See 88 F.3d at 413. In
this position is the only logical application of the McDonnell      Ganzy, the district court held plainly that the plaintiff was
Douglas test. In Aikens, the district court noted Aikens’s          “qualified for the position she held and was satisfactorily
general qualifications and positive employer reviews to             performing her job” even though she had engaged in
conclude initially that Aikens had made out a prima facie           premarital sex in violation of the school’s religious principles.
case. See 460 U.S. at 713 n.2 & 714 n.4. At trial, the defense      Ganzy, 995 F. Supp. at 359.           In sum, both logic and
18     Cline v. Catholic Diocese                             No. 98-3527         No. 98-3527                   Cline v. Catholic Diocese      15
       of Toledo, et al.                                                                                                 of Toledo, et al.

   Finally, Circuit caselaw has long recognized the logic of                     argued that Aikens had not been promoted because he failed
Aikens, utilizing the careful analysis we articulate in this case                to accept several lateral transfers which would have
rather than conflating the distinct stages of McDonnell                          broadened his Postal Service experience. See id. at 715.
Douglas. See, e.g., Barnett v. Department of Veterans                            Ultimately, the district court ruled against Aikens for having
Affairs, 153 F.3d 338, 341-42 (6th Cir. 1998) (treating failure                  failed to make out his prima facie case, see id. at 716, finding
to pass a basic test as the legitimate, nondiscriminatory reason                 him unqualified due to the Postal Service’s explanation. See
                                                                                 Aikens v. United States Postal Serv. Bd. of Governors, 642
                                                                                 F.2d 514, 518 (D.C. Cir. 1980). While the D.C. Circuit found
                                                                                 this reliance on the Postal Service’s evidence unconvincing as
rebutting plaintiff’s prima facie case belong in the later stages of             a matter of fact, see id. at 518, the Supreme Court made clear
McDonnell Douglas, and relying on plaintiff’s evidence alone to find the         that both courts’ analyses were more deeply flawed because
prima facie case satisfied); Yarborough v. Tower Oldsmobile, Inc., 789           they used the defendant’s nondiscriminatory reason to assess
F.2d 508, 512 (7th Cir. 1986) (stating that defendant’s argument that
plaintiff refused a job assignment and thus failed to meet its legitimate        whether the plaintiff met his prima facie case. Given
expectations was not “appropriately brought as a challenge to the                defendant’s production, the court was “in a position to decide
sufficiency of [the] prima facie case,” and considering only plaintiff’s         the ultimate factual issue in the case,” and should have done
testimony to find a prima facie case to be made); Davenport v. Riverview         so. 460 U.S. at 715. The Supreme Court remanded the case
Gardens Sch. Dist., 30 F.3d 940, 944 (8th Cir. 1994)(disapproving of             to the district court, adding: “Of course, the plaintiff must
district court’s prima facie analysis because it “required plaintiff, at the     have an adequate ‘opportunity to demonstrate that the
outset, to disprove defendant’s alleged business reasons for its adverse
employment actionCin other words, to prove pretext and the ultimate              proffered reason was not the true reason for the employment
issue of intentional discrimination”); Douglas v. Anderson, 656 F.2d 528,        decision.’” Id. at 716 n.5 (quoting Burdine, 450 U.S. at 256).
533 (9th Cir. 1981) (considering a defendant’s evidence of unsatisfactory
job performance as its production, and not at the prima facie stage);               Except for the fact that Cline’s suit was decided at the pre-
Thomas v. Denny’s, Inc., 111 F.3d 1506, 1510 (10th Cir. 1997) (troubled          trial stage, the district court’s error in Aikens—relying on the
that “[i]f at the prima facie stage the factfinder credits the reasons offered   nondiscriminatory reason produced by the Postal Board to
by the defendant for the failure to be promoted, the jury is not required to
even consider the plaintiff’s evidence on the critical issue of pretext”); id.   rule against Aikens at the prima facie stage—is identical to
(“[R]elying on a defendant’s reasons for the adverse action as a basis for       the district court’s in this case. Indeed, just as St. Paul’s
ruling against a plaintiff at the prima facie stage raises serious problems      argument here, the defendant’s argument in Aikens was
under the McDonnell Douglas framework . . . .”); Kenworthy v. Conoco,            essentially that Aikens was not qualified, yet the Supreme
Inc., 979 F.2d 1462, 1469-70 (10th Cir. 1992)(stating that district court’s      Court reprimanded the district court for considering that
ruling that the plaintiffs do not establish a prima facie case based on the
employer’s reasons for their discharge raises “serious problems under the        argument as bearing on the prima facie proof. Defendant’s
McDonnell Douglas analysis” and “short-circuit[s] the analysis at the            argument should instead have been treated as its production
prima facie stage” before allowing plaintiff to show that proffered reason       of a nondiscriminatory reason, enabling the fact-finder to
to be pretextual); Rosenfield v. Wellington Leisure Products, Inc., 827          proceed to the ultimate question of whether the defendant
F.2d 1493, 1495 n.2 (11th Cir. 1987) (stating that “any disagreement             intentionally discriminated against the plaintiff. See id. at
between parties regarding whether a particular plaintiff was adequately
performing his job” belongs at the later stages of McDonnell Douglas)            715. To assess this evidence at the prima facie stage is to
(11th Cir. 1987); Paquin v. Federal Nat’l Mortgage Ass’n, 119 F.3d 23,           misapply legal rules governing the allocation of burdens and
27 (D.C. Cir. 1997) (looking at plaintiff’s evidence, including her “twenty      order of proof to the determination of “the ultimate question.”
year tenure” and “series of promotions,” prior to negative performance           Id. at 716.
evaluations proffered by defendant to find plaintiff to surpass the prima
facie stage).
16   Cline v. Catholic Diocese                    No. 98-3527      No. 98-3527                         Cline v. Catholic Diocese           17
     of Toledo, et al.                                                                                           of Toledo, et al.

   The Hicks decision confirms the logic of Aikens and applies     of that nondiscriminatory explanation comprises the “ultimate
it to the termination context. In that case, after a number of     issue” of the case.7
years of successful employment which included a promotion,
St. Mary’s fired Hicks following a series of disciplinary
actions and a demotion. See 509 U.S. at 504-05. The district           7
court nevertheless found him “qualified” for prima facie                 The Hicks trial in particular displays how best to assess the
purposes by looking only at the evidence of Hicks’s                hypothetical posed by St. Paul in its petition for rehearing: that of the
employment record prior to the events that spurred his             truck driver who has lost her license. Clearly, St. Paul argues, such a
                                                                   driver should automatically lose under the “legitimate expectations” prong
demotion and consequent termination. See Hicks v. St.              of the prima facie case. Despite the surface-level appeal of this
Mary’s Honor Ctr., 756 F.Supp. 1244, 1249 (E.D. Mo. 1991).         hypothetical, we believe Hicks requires more than a summary conclusion
In other words, the court did not consider Hicks’s alleged         that an employee was unqualified for the reason offered by a defendant,
violation of various rules as part of the prima facie case (even   no matter how purportedly objective and neutral that reason might seem.
though they arguably showed that he was not “qualified,” just      Rather, as in Hicks, we should look instead at whether an employee met
                                                                   her employer’s legitimate expectations prior to the event(s) that sparked
as Cline’s violation of an essential rule allegedly deemed her     the termination, even if the event is as seemingly objective as losing one’s
“unqualified” in St. Paul’s eyes), but properly reserved its       license or violating clear rules, as in Hicks. Whether she makes her prima
consideration of those alleged violations until the production     facie case depends on whether she can make this showing.
stage. At that point, the Hicks Court emphasized, the prima
facie inquiry “drops from the case” and the plaintiff once              Meanwhile, as in Hicks, the reason proffered by defendant for its
                                                                   termination of a driver (ie., that she lost her license) would by definition
again has the “full and fair opportunity to demonstrate” that      constitute the defendant’s “production,” which entitles plaintiff the
he has been the victim of intentional discrimination. 509 U.S.     opportunity for a full evidentiary rebuttal of that articulated reason.
at 507. Although the Court reversed the court of appeals on        Regarding that issue, a court will thus have reached the ultimate factual
the question of whether Hicks met that ultimate burden, the        question: did her employer fire her because she lost her license, or due to
structure of the Hicks trial reflects the logic of Aikens in the   her gender? Perhaps the plaintiff can now put forth evidence that the
termination context: that whether or not a plaintiff makes a       license justification was merely a pretext for discrimination; for example,
                                                                   perhaps her employer had only suspended men who lost their licenses
prima facie case must be ascertained by weighing the               until they received new licenses; or perhaps she never had a license and
plaintiff’s evidence that she was meeting her employer’s           always received positive evaluations anyway, but once she became
legitimate expectations, not by considering the                    pregnant, she was fired for not having her license. On the other hand, if
nondiscriminatory reasons produced by the defendant as its         the company uniformly fires all its employees the moment they lose their
reason for terminating her. Moreover, the Hicks trial shows        licenses, she will likely have no evidence to show discrimination, and will
                                                                   therefore lose on summary judgment. But again, because her lack of a
that in the termination context, this determination will often     license comprises defendant’s nondiscriminatory reason for firing her, she
involve assessing whether the plaintiff was meeting the            can not lose at the prima facie stage on that ground, even though she
employer’s expectations prior to the onset of the events that      would lose on summary judgment anyway barring evidence showing
the employer cites as its reason for the termination, because      discrimination.
weighing the litigants’ evidence on the veracity and propriety
                                                                        Panels from most other circuits have recognized this insight, and have
                                                                   distinguished between the prima facie and later stages of McDonnell
                                                                   Douglas accordingly. See, e.g., Freeman v. Package Mach. Co., 865 F.2d
                                                                   1331, 1335-36 (1st Cir. 1988)(looking only at plaintiff’s evidence that he
                                                                   was qualified for prima facie purposes, and considering defendant’s
                                                                   evidence to the contrary at the rebuttal stage); Siegel v. Alpha Wire Corp.,
                                                                   894 F.2d 50, 54 (3d Cir. 1990) (stating that defendant’s arguments
