Laderach v. U-Haul of NW OH

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