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

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

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

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

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

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

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

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

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

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

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

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