Robin Laderach v. U-HAUL OF NORTHWESTERN OHIO and ROBERT GILRAY

1
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
_________________
R OBIN LADERACH ,
Plaintiff-Appellant,
v.
U-HAUL OF NORTHWESTERN
OHIO and R OBERT GILRAY ,
Defendants-Appellees.
;>

1
No. 99-3155
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

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2 Laderach v. U-Haul of
Northwestern Ohio, et al.
No. 99-3155
1The Alexis Road facility includes a rental center and repair shop
where U-Haul trucks and equipment are serviced.
2Gilray reports to U-Haul International.
A. Nolan, Jill S. Kirila, SQUIRE, SANDERS & DEMPSEY,
Columbus, Ohio, for Appellees.
CONTIE, J., delivered the opinion of the court, in which
KEITH, J., joined. NORRIS, J. (pp. 10-11), delivered a
separate concurring opinion.
_________________
OPINION
_________________
CONTIE, Circuit Judge. Plaintiff-appellant Robin
Laderach (“Laderach”) appeals the summary judgment
dismissal of her sex discrimination and wrongful discharge
action against her former employer, defendant-appellee U-
Haul of Northwestern Ohio (“U-Haul”), and her former
supervisor, defendant-appellee Robert Gilray (“Gilray”). We
reverse the district court’s January 8, 1999 Order and remand
this action to district court.
I.
On May 24, 1996, Laderach began working for U-Haul as
a part-time transfer driver at its Alexis Road (Toledo)
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-appellee Robert Gilray oversees all aspects of U-
Haul’s operations.2
No. 99-3155 Laderach v. U-Haul of
Northwestern Ohio, et al.
11
Nor do I find it “suspicious” that U-Haul dismissed plaintiff
despite her record of promotions and pay raises. The extent
of plaintiff’s financial mismanagement came gradually to
light; furthermore, the promotion that she sought went to a
better qualified individual. The fact that the district court
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
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
254-56. However, the burden of persuasion ultimately rests
with plaintiff. Given the evidence presented to this court, it
strikes me as unlikely that plaintiff will be able to meet this
burden.
Accordingly, I view our decision to remand this action
somewhat expansively. Except that the district court should
consider that plaintiff presented direct evidence of
discrimination, it remains free to revisit the Title VII burden-
shifting scheme in its entirety, including the
nondiscriminatory explanation offered by U-Haul for its
decision.

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

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4 Laderach v. U-Haul of
Northwestern Ohio, et al.
No. 99-3155
3The record reveals that Laderach’s salary with U-Haul increased
from $5.00 per hour to $8.25 per hour.
“women are not mechanically inclined.” Laderach also
asserts that she was treated differently than the men she
worked with on two occasions immediately preceding her
termination. Specifically, Laderach asserts that she was told
to report for work, and the men she worked with were given
the days off, when the walls and ceiling in the repair shop
were painted, and again when the floor in the repair shop was
stripped and resealed. Accordingly, Laderach asserts that the
defendants’ discriminatory conduct resulted in her exposure
to hazardous paint and chemical fumes.
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 her
employment with U-Haul belie her discrimination claim.3
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.
No. 99-3155 Laderach v. U-Haul of
Northwestern Ohio, et al.
9
4In light of our decision to reverse and remand this action to district
court, we need not address Laderach’s claim that her discharge violated
public policy.
prove that her sex played a part in the appellees’ decisions
notwithstanding her lack of mechanical and management
experience and her alleged data entry errors.
Because Laderach presents direct evidence of
discriminatory animus that the appellees failed to refute, we
REVERSE the district court’s January 8, 1999 Order
granting the appellees’ motion for summary judgment, and we
REMAND Laderach’s action to the district court for further
consideration.4

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8 Laderach v. U-Haul of
Northwestern Ohio, et al.
No. 99-3155
those reasons would be that the applicant or employee was a
woman.” Id. at 250 (footnote omitted). Accordingly,
Laderach must prove that her sex played a part in the
appellees’ decision not to promote her to the repair shop
manager position. See Cesaro v. Lakeville Community School
District, 953 F.2d 252, 254 (6th Cir. 1992) (“Whether
plaintiff’s case is characterized as a pretext case or a mixed
motive case, plaintiff’s burden is to prove her gender played
a part in the board’s decision not to hire her as Director of
Special Education.”).
Laderach’s direct evidence of discriminatory animus
included Ken Hale’s testimony that, on two occasions, Gilray
told him that he would not promote Laderach to the repair
shop manager position because of her sex. Hale, the shop
foreman, also testified that Gilray did not want Laderach to
answer “hotline” telephone calls because “women are not
mechanically inclined.” Laderach also points to the
appellees’ refusal to give her time off like her male coworkers
when the repair shop’s walls were painted and the floors were
stripped and sealed.
Though the appellees assert that “[i]t defies logic that only
one month after promoting Laderach to the Senior Clerk
position . . . Gilray would remove Laderach from this same
position simply because she is a woman,” Appellees’ Brief at
12, Laderach asserts that, prior to her termination, she was
never disciplined or counseled by the appellees. If Laderach’s
assertions are true, the appellees’ sudden decision to terminate
her after months of promotions and pay raises is suspicious
when considered together with the discriminatory statements
attributed to Gilray.
Though the appellees also assert that summary judgment
was appropriate because they articulated legitimate business
reasons for not promoting Laderach to the repair shop
manager position (i.e., less experience than the candidate
selected) and for terminating her (i.e., problems with her job
performance), we disagree because Laderach may be able to
No. 99-3155 Laderach v. U-Haul of
Northwestern Ohio, et al.
5
II.
Standard of Review
We review a district court’s order granting summary
judgment de novo. Grand Traverse Band of Ottawa &
Chippewa Indians v. Director, Michigan Dep’t of Natural
Resources, 141 F.3d 635, 638 (6th Cir.), cert. denied, 119 S.
Ct. 590 (1998). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). Accordingly, summary judgment must
be entered “against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “When reviewing a grant of summary judgment, this
court must confine its analysis to the evidence which was
before the district court.” Landefeld v. Marion General
Hosp., Inc., 994 F.2d 1178, 1181 (6th Cir. 1993) (citation
omitted).
Laderach’s Claims Against U-Haul and Gilray
On appeal, Laderach alleges that U-Haul and Gilray
discriminated against her because of her sex in violation of 42
U.S.C. § 2000e-2 and Ohio Rev. Code § 4112.02. Because
the elements and legal standards for establishing unlawful sex
discrimination are the same under Ohio Rev. Code § 4112.02
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,
609-10 (1991), we need not analyze Laderach’s sex
discrimination claims separately under state and federal law.
See Norbuta v. Loctite Corp., 181 F.3d 102 (6th Cir. 1999)
(unpublished) (“[T]his court need not analyze Norbuta’s
claims regarding sex discrimination and sexual harassment
separately under federal and state law” because the Ohio

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6 Laderach v. U-Haul of
Northwestern Ohio, et al.
No. 99-3155
Supreme Court “has held that the elements and legal
standards for establishing unlawful sex discrimination under
Ohio Revised Code § 4112.02(A) are the same as those under
Title VII.”).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the United States Supreme Court set forth the
evidentiary framework for analyzing workplace
discrimination actions. Under the McDonnell Douglas
burden-shifting analysis, a plaintiff bears the burden of
establishing by a preponderance of the evidence a prima facie
case of discrimination (i.e., a presumption of discrimination).
A plaintiff satisfies this burden by proving: (1) membership
in a protected class; (2) that she suffered an adverse action;
(3) that she was qualified for the position; and (4) that she
was replaced by, or treated differently than, someone outside
the protected class. Id. at 802. Once the plaintiff establishes
a prima facie case, an inference of discrimination arises. The
burden of proof then shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the plaintiff’s
discharge. Id. Once established, the burden shifts back to the
plaintiff to prove that the employer’s articulated
nondiscriminatory reason for its action was merely pretext for
unlawful discrimination. Texas Dep’t of Community Affairs
v. Burdine, 450 U.S. 248, 252-53 (1981). In other words, the
plaintiff must prove “that the [employer’s] asserted reasons
have no basis in fact, that the reasons did not in fact motivate
the discharge, or, if they were factors in the [employer’s]
decision, that they were jointly insufficient to motivate the
discharge.” Burns v. City of Columbus, 91 F.3d 836, 844 (6th
Cir. 1996) (citations omitted). The McDonnell Douglas
burden-shifting analysis also applies to “failure to promote”
discrimination claims. See Brown v. State of Tennessee, 693
F.2d 600, 603 (6th Cir. 1982) (“[T]o make out a prima facie
[failure to promote] case the plaintiff must show that she
belongs to a protected group, that she was qualified for and
applied for a promotion, that she was considered for and
denied the promotion, and that other employees of similar
qualifications who were not members of the protected group
No. 99-3155 Laderach v. U-Haul of
Northwestern Ohio, et al.
7
were indeed promoted at the time the plaintiff’s request for
promotion was denied.”) (citation omitted).
In this action, the district court found that Laderach failed
to present an issue of material fact with respect to the fourth
element of her claim because she failed to show that her
qualifications were similar to Mr. Waggoner’s qualifications.
In other words, the district court held that Laderach failed to
establish a prima facie case of sex discrimination under the
McDonnell Douglas burden-shifting analysis. We disagree.
Though it is true that Laderach lacked management
experience and her mechanical background was limited,
Laderach established an issue of material fact with direct
evidence of discrimination sufficient to defeat the appellees’
motion for summary judgment.
“In discrimination cases, direct evidence is that evidence
which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the
employer’s actions.” Jacklyn v. Schering-Plough Healthcare
Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)
(citations omitted). See Norbuta v. Loctite Corp., 181 F.3d
102 (6th Cir. 1999) (unpublished) (“[D]irect evidence proves
the existence of a fact without any inferences or
presumptions.”). See also Manzer v. Diamond Shamrock
Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (evidence
that requires the jury to infer a fact is not direct evidence).
“Once there is credible direct evidence, the burden of
persuasion shifts to the defendant to show that it would have
terminated the plaintiff’s employment had it not been
motivated by discrimination.” Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d at 926 (citations
omitted).
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the
Supreme Court held: “In saying that gender played a
motivating part in an employment decision, we mean that, if
we asked the employer at the moment of the decision what its
reasons were and if we received a truthful response, one of

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