# Ann Nadia Tye, Cross-Appellee v. Board of Education of the Polaris Joint Vocational School District, Cross-Appellants > Court of Appeals for the Sixth Circuit · April 15, 1987 · 811 F.2d 315 URL: https://www.frixlaw.com/law-library/cases/9475833 ## Case - **Full name:** Ann Nadia TYE, Plaintiff-Appellant, Cross-Appellee, v. BOARD OF EDUCATION OF the POLARIS JOINT VOCATIONAL SCHOOL DISTRICT, Et Al., Defendants-Appellees, Cross-Appellants - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** April 15, 1987 - **Citations:** 811 F.2d 315 - **Precedential status:** Published - **Opinion:** Dissent by Norris - **Judges:** Merritt, Guy, Norris - **Cited by:** 32 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated in part, on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475833 ## How later opinions describe it (automated extraction) - holding that the district court erred in determining that plaintiff had not established pretext and concluding that because plaintiff established pretext she was entitled to judgment as a matter of law - holding that the district court erred in determining that plaintiff had failed to prove pretext and entering judgment for plaintiff ## Opinion text NORRIS, Circuit Judge, dissenting. In my view, this appeal should be resolved by reference to our opinion in La-Grant v. Gulf & Western, 748 F.2d 1087 (6th Cir.1984). Analysis of and adherence to the rationale underlying that opinion leads to the inescapable conclusion that Ms. Tye did not make out a prima facie case. In this case and in LaGrant, there was a reduction in force with the plaintiff in both having been laid off and complaining that the decision to retain another specific employee was the product of discrimination. In each case, the plaintiff attempted to establish a prima facie case by showing (1) membership in the protected class, (2) discharge, (3) qualification for the position, and (4) replacement by a person who was younger or a member of the opposite sex. In LaGrant, we held that this McDonnell Douglas four-step progression to a prima facie case, while appropriate in the usual termination and replacement situation where no position is eliminated and the position left open by the plaintiff’s discharge is filled by another, is not applicable in a reduction in force situation since the plaintiff is not replaced. Thus, in a reduction in force situation, other evidence must be substituted for the fourth element (replacement) in order for there to be sufficient circumstantial evidence from which an inference of discrimination can be drawn, and a prima facie case made out. The rationale of LaGrant is applicable here since we are confronted with a similar evidentiary consideration. The ultimate fact to be proved in discrimination cases is intentional discrimination, and direct evidence of that ultimate fact is rarely available. The evidentiary litany of McDonnell Douglas and its progeny recognizes the reality that proof of intentional discrimination will almost always have to depend upon circumstantial evidence. The prima facie case stage of the litany is a way of measuring the quality of circumstantial evidence that is required to raise an inference of intentional discrimination that is strong enough to go to a jury (i.e., that would survive a motion for summary judgment or for directed verdict). LaGrant speaks to the sufficiency of circumstantial evidence required to raise an inference of intentional discrimination, in the context of a reduction in force, as distinguished from termination and replacement. In LaGrant, this court correctly perceived the evidentiary framework of reduction in forces cases. In the termination and replacement situation, when a woman is replaced by a man, that fact, in concert with a showing that (1) she was a member of the protected class, (2) was. discharged, and (3) was qualified, is sufficient to ground an inference of discriminatory treatment. By contrast, when, due to conceded economic necessity, one of two positions (one held by a man, the other by a woman) is eliminated, and the male is retained and the woman is terminated, the LaGrant rationale says that these reduction in force circumstances do not raise an inference of intentional discrimination. The reason for the distinction is apparent; the two situations are vastly different, qualitatively. It is the replacement of a woman by a man that is the suspect circumstantial evidence; that exercise both disfavors the woman and prefers the man. By contrast, when there is a reduction in force, only the act of disfavor is present; the man simply retains the status he already had. While one might argue that retaining the man also amounts to preferential conduct, that argument was rejected in LaGrant to the extent that retention in concert with termination was deemed not to be circumstantial evidence of intentional discrimination, in comparison with the combination of replacement and termination, which will *322 ground a reasonable inference of intentional discrimination, when the other McDonnell Douglas factors are also present. I am unpersuaded by the distinction attempted to be drawn between this case and LaGrant, in footnote one of the majority opinion, since the statement that “Ms. Tye has conclusively established that she was replaced by a male,” is not an accurate characterization of the evidence as set out in the majority opinion’s recitation of facts. Accordingly, because Ms. Tye did not satisfy her burden of establishing a prima facie case, our inquiry should conclude at that point, and result in affirmance of the district court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475833. Public record. Not legal advice.