Dorothy Kovacevich v. Kent State University

y treating erred court

The district NTSB testimony and the

Popp’s deposition definitive, they are whereas

findings as may testimony and by expert

contradicted thus did The court at trial. challenged

be light in the most the evidence

not view granting sum- plaintiffs

favorable testi- expert Plaintiffs’

mary judgment. in the available sufficiently rooted

mony is theory make out reasonable Thus, have plaintiffs should causation. theo- negligence their allowed take

been of the district jury. to a

ry REVERSED, is therefore trial. is remanded KOVACEVICH,

Dorothy

Plaintiff-Appellant, UNIVERSITY,

KENT STATE

Defendant-Appellee.

No. 98-3678. Appeals, Court

United States Circuit.

Sixth 9, 1999

Argued: Dec. Aug. and Filed:

Decided (briefed),

Brian J. Williams Brian J. Co., Akron, OH, Williams Dennis R. briefed), Thompson (argued and Thompson Offices, Akron, OH, Law for Plaintiff-Ap- pellant. (briefed),

Kathaleen B. Spater, Schulte Gittes, Kolman, Columbus, OH, Schulte & for Amici Curiae.

Edward (argued C. Kaminski and briefed), (briefed), Cunningham Richard T. (briefed), Michael S. Urban Amer Cun- Co., Akron, OH, ningham Brennan for De- fendant-Appellee. JONES, COLE, GILMAN,

Before: and Judges. Circuit JONES, J., NATHANIEL R. delivered opinion court, COLE, of the which J., GILMAN, 833-40), joined. (pp. J. a separate concurring opinion. delivered positions at KSU: professor tenure-track OPINION assistant, A professor. and full associate JONES, R. Circuit NATHANIEL agreements bargaining of collective series Judge. and criteria used to governs process employ- lengthy a appeal follows This applica- Promotion grant promotions. pitting long- trial ment discrimination through layer of reviews proceed tions University at Kent State professor time faculty The by KSU and administrators. (“KSU”) University. After against the Faculty is the reviewing first committee plaintiffs in the favor jury verdict trial and (FAC), comprising Advisory Committee claims, the age discrimination on sex and applicant’s own faculty members of motion for granted KSU’s district court elected for several- department who are of law on these as a matter a recom- year terms. The FAC issues decision, plaintiff appeals The claims. chairperson of the de- mendation to rulings in as well as other district her recommen- partment, who makes own part, AFFIRM KSU’s favor. We reviewing the independently after dation part. REVERSE in Advisory College The Com- application. (CAC), comprising faculty mem- mittee I. college, performs from the entire bers a rec- the next review. The CAC makes A. college ommendation to the dean of KSU, from receiving her doctorate After belongs, and the department in which the Dorothy Kovacevich Plaintiff-Appellant independent review dean makes another Edu- College began teaching KSU’s Next, the Univer- and recommendation. track, one- in 1973 a non-tenure cation (UAB), sity Advisory up Board made age at the Instructor. year university, re- from across the professors position, a tenure-track was hired into she makes a recom- application views the in the professor an assistant working as provost. pro- to the mendation KSU Special Education College of Education’s to the vost then makes recommendation $14,000 offered her department. KSU makes a recommendation president,1 who salary, accepted. year academic she of Trustees based on to the KSU Board teaching included and coordi- Her duties complete applica- an assessment Special Edu- nating experience the field tion, including all the recommendations. teachers. In Kovace- cation student level, a recommendation anyAt favorable tenure. Her fortunes granted vich was to the next level. application moves the years ensuing over the fifteen KSU —and ends Any unfavorable recommendation history promotion and particular in her “appeal” process, barring a successful years those salary increases over —are sum, next level. In the levels of at the subject litigation. of this review are as follows: (FAC) 1) Faculty Advisory Committee 1)Discrimination in Promotion 2) Department Chairperson contends that KSU dis- Kovacevich first 3) (CAC) College Advisory Committee her against by promoting her criminated gender. to her Be- pace at a snail’s due 4) College Dean of the particular, in considering her situation fore (UAB) 5) University Advisory Board general procedures we will review KSU’s 6) University Provost granting promotions. for 7) University President organized into six academic col- KSU is faculty must promoted, To be member leges, separate are into de- which divided in one of outstanding of demonstrate work There are three ranks partments. decision,” "nearly ered a final J.A. 904-05. provost’s is consid- 1. The recommendation 1) 2) teaching advising; three and and granting areas: recommended the promotion, 3) scholarship; research and service effective for the year. 1988-89 academic addition, In and creative effort. a candi- The KSU President agreed, concluding requirements minimum date must meet that although her scholarship remained part appli- the other two areas. As of the weak, somewhat, it had improved and that cation procedure, applicant must submit Kovacevieh long history had a of service to paperwork substantial and other materials KSU. professional accomplish-

that evince her 2) WageDiscrimination

ments. argues Kovacevieh also applied promotion Kovacevieh first for that KSU dis- her, against to an criminated professor position gender associate in 1978. based Although age, and and department granting salary FAC chair- when increases person during years her promotion, recommended her there. There are four ways in which application. faculty CAC denied her She did not KSU salaries are 1) 2) appeal promotion; awards; In increased: this decision. Kovacevieh merit 3) again once for fixed applied promotion; percentage she salary across-the-board 4) increases; FAC, equity obtained the recommendation of the and salary adjust- department her ments. Kovacevieh chairperson, challenges here CAC KSU’s Education, granting the dean of her College yet merit awards. provost the UAB and the appli- denied her Merit only awards are available those cation, citing a lack of sufficient scholar- years when sufficient funds are available. ship. Kovacevieh appealed that denial to They analogous are they a bonus Golding, then-President Brage agreed who faculty reward members for achievement

with the denial. She appeal did not in teaching or scholarship. Unlike bo- decision further.2 nus, however, a merit award becomes In again permanent Kovacevieh once applied addition to a professor’s base promotion salary professor. years. years associate She future In acknowledged available, at trial that her documenta- merit awards are interested fac- tion was “a ulty mess.” J.A. at 534-36. After members must application submit an receiving the documenting recommendation of their the FAC achievements from that department chairperson, year. Education, In the College CAC rec- against promotion, ommended reviews application, did the FAC with each board, dean of College. appeals rating FAC member applicant’s teach- provost, president ing and the research/scholarship. Faculty all denied her appeals. again, they may Once members explained earn merit one or both categories. her research and scholarship rank-orderings were Based on the evaluations, weak. compiled FAC the de- (who partment chairperson does know serving after as an assistant applicants) names ranks the professor years, ap- for fifteen Kovacevieh applications various an determines plied again profes- once to be an associate amount to be applicant. awarded to each Although sor. she received recommenda- chairperson then submits the list to FAC, tions from the department college, the dean of the who makes the Chairperson, CAC and the dean of the final determination of award amounts. Education, College of the UAB recom- against Nevertheless, 1977, mended promotion. merit Since awards were available provost recommendation, rejected that applied eleven times. Kovacevieh for undergoing promotion 2. ap- As she was this work the remainder of the 1980-81 academic 1981, plication process, year. although Kovacevieh suffered from a She returned to work in perform severe heart attack and took an extended she was not able to all her duties recuperate. leave of absence-to She did not until 1983. salary appropri- was Concluding her occasions. KSU eight least on at awards record, the times, ate on her work KSU based increases seven her merit granted in March grievance denied the provost each minimum award her the providing received her re- 1993. Kovacevich never occasions, the dean of the On two time. EEO adjustment, and filed her quested the award reduced College of Education January discrimination on charge of department Kovacevich’s amount which 1994. receive. she had recommended chairperson occasion, a dean disallowed another On 3) Comparators following chart award. The

recommended history: award merit Kovacevich’s shows claims, argues Kovacevich In of her both 1977-78: $350 faculty similarly situated mem- that other favorably. treated more bers were 1978-79: $300 (applied) 1979-80: $0 a) Dr. Zuckerman 1980-81: $03 gender-based support In of her claims of available none 1981-82: discrimination, presented Kovacevich wage none available 1982-83: Zuckerman was a evidence that Dr. Robert apply 1983-84: did comparator who was similarly situated 1984-85: $500 favorably. KSU hired Zuck- treated more apply did not 1985-86: professor as an assistant in erman 1986-87: $500 department. He Special Education 1987-88: none available teaching year salary academic began an 1988-89: $500 Kovacevich, $13,500. Like Zuckerman 1989-90: none available pro- an promotion for assistant applied application fessor 1990-91: $250 reapplied In denied. Zuckerman 1991-92: $350 unanimous Without the rec- promotion. (Merit available after awards were not CAC, ommendation of either FAC 1991-92) despite negative recommendation 74-75, J.A. UAB, promoted President from formally requested In Kovacevich his appeal. Zuckerman on college salary adjustment. The dean pay in the applied Zuckerman for merit to consider committee appointed not—1983 and years that Kovacevich did ultimately the committee request, and large merit awards in 1985—and received record of that Kovacevich’s concluded when she received years. those request- did not performance warrant merit, Zuckerman received only $500 submitted adjustment. Kovacevich ed $1,500. salary adjustment request second $12,- seeking an annual increase b) Dr. Barbour occasion, a CAC committee 500. On age her Regarding claim discrimina- to consider compelling reasons

found tion, that KSU treated argues avail- Kovacevich adjustment merit funds were when Barbour, Nancy younger professor Dr. funds were not Because merit able. Education, College of more favor- available, in the and the American Kovacevich Around the time ably age. of her University Professors because Association (“AAUP”) adjustment her gain that Kovacevich made re- grievance a filed salary a requested also funding quest, source. Barbour adjustment from another year. J.A. at 974. whether It not clear record 3. from for merit for the 1980-81 applied Kovacevich law, judgment for as a matter of gender discrimi- its motion alleging that

adjustment, salary judgment rela- and Kovacevich also moved for for her lower nation accounted August matter of law. doing equal work. as a On professor to a male tive case, granted court KSU’s motion for the dean stated in Kovacevich’s As adjustment a matter of law on Kovace- judgment once as grant that she would claims, disparate response, vich’s Title VII treatment funds were available. merit concluding were barred through a the claims filing grievance rather than (as did), Barbour filed the statute limitations and Kovace- Kovacevich AAUP vich to make with of Affirmative had failed out complaint KSU’s Office KSU settled case. The court denied Kovacevich’s mo- negotiations, Action. After tion, request as well as her to amend her claim of sex discrimination Barbour’s claim, lump complaint sum to add a retaliation and granted 1993 and her a March $15,000 again judgment reserved on KSU’s motion as well as substantial payment years. regarding salary' in her over two the other claims. increases 4, 1997, August jury returned a On B. verdict in favor of Kovacevich on both the 17, 1995, granting Kovacevich filed a ADEA EPA March and claims. While On $17,477 alleging sex and the ADEA complaint against damages KSU her for claim, Equal jury damages of the age discrimination violation awarded no under 206(d) (“EPA”); Act, § Ti- EPA ac- Pay 29 U.S.C. because found KSU’s Rights Act tions were not willful. After Kovacevich tle VII Civil seq.; 2000e et Age § Dis- EPA challenged and the verdict inconsis- U.S.C. Act, tent, Employment jury crimination in U.S.C. re-deliberated under (“ADEA”). $11,- parties damages § conducted The instruction and awarded jury. discovery August Septem- until 1996. In The court then excused the com- Kovacevich amended her ber parties post-verdict filed several disparate impact plaint to add a claim of again judg- moved for a motions. KSU time, parties under Title VII. At that both the EPA and ment as a matter of law on summary judgment. filed motions for On claims, filed a new motion for ADEA and 27, 1997, the district court denied June summary judgment dispa- on the Title VII At final status confer- both motions. in turn impact claim. Kovacevich rate trial, prior granted the court ence directed moved for reconsideration of the KSU’s motion to bifurcate the Title VII disparate treat- verdict on her Title VII granted claim KSU’s disparate impact and claim, ment filed a motion to strike KSU’s 1) preclude motion in limine to: the testi- motion, re- summary judgment new and 2) expert; mony of Kovacevich’s statistical impact quested stay disparate on the study her exclude from evidence statistical depose until she could KSU’s proceedings wage and trends at regarding promotion 8, 1998, May expert. On statistical 3) KSU; Department exclude motion for granted district court KSU’s why it order that show cause Labor KSU EPA judgment matter of law on the as a wage had not committed discrimination. to Fed. pursuant and ADEA claims 50(b), motion denied Kovacevich’s disparate R.Civ.P. The trial on the Title VII reconsideration, claim, granted KSU’s EPA ADEA claims treatment summary judgment on 15, 1997, second motion for days twelve began July lasting on claim. Kovacevich disparate impact At the end of period. over a three-week 4,1998. 29, 1997, appeal filed this on June July case on KSU Kovacevich’s as a matter of law moved II. 50(a), but the court under Fed.R.Civ.P. matter, ad preliminary we At the As ruling

deferred on the motion. suit aspects of Kovacevich’s July its case KSU renewed dress whether close of 816 Kovacevich’s by Eleventh Eleventh Amendment bars

against are barred KSU claims, First, ADEA and EPA we will consider recognize we Amendment. the defense. raise an Eleventh Amend- KSU did not level and at the district court

ment defense that the court did not address A. find that this Court’s question. We also First, Kimel v. Florida Bd. Re of Caviness, v. 99 conclusion in Wilson-Jones 62, 631, 145 gents, 528 U.S. 120 S.Ct. (6th Cir.1996) 203, “state 206 —that (2000) plainly 522 holds that L.Ed.2d immunity jurisdictional the same money damages cannot states be sued for diversity require- complete sense as the Congress’s the ADEA abro under because ment,” litigants’ and that “neither the con- immunity not valid gation of states’ sent, oversight, convenience can nor nor Flores, City Boerne v. under U.S. of illegal pow- of justify a court’s exercise 2157, 507, 117 S.Ct. 138 L.Ed.2d 624 longer good law. In er”—is no Wisconsin (1997). Kimel, 528 at- See U.S. Schacht, v. Dep’t Corrections U.S. -, 644-50; Coger 120 S.Ct. at v. Board 2047, 381, 389, 141 L.Ed.2d 364 118 S.Ct. (6th Cir.2000) Regents, 209 F.3d 485 Caviness, (1998), holding to our counter (stating that Kimel concluded that that the Elev- Supreme Court stated abrogation ADEA’s of Eleventh Amend jurisdictional, and enth Amendment is not immunity Congress’ “exceeded au ment complete diversity is not akin to the re- thority under Section 5 of the Fourteenth can the de- quirement. “The State waive Amendment”), vacating 154 F.3d 296 ... raise fense. Nor need court Cir.1998). law, Ohio KSU is an Under defect on its own. raises Unless State “arm of the state” entitled to Eleventh matter, Id.; ignore can it.” see immunity. See Hall v. Medi Amendment Higgins Mississippi, also v. 217 F.3d 951 Toledo, College cal Ohio at (7th Cir.2000) (stating that Schacht was (6th Cir.1984). im 302-07 KSU is thus Caviness). contrary holding to the ADEA, mune from suit and we under affirm the district court’s Nonetheless, unlike other affirma KSU on that claim. “ defenses, tive ‘the Eleventh Amendment sufficiently partakes defense of the nature B. jurisdictional may of a bar’ that be any point proceedings,” raised at of the Conversely, we find that Kimel including appeal. Dep’t on Florida of does not alter this Circuit’s conclusion Salvors, Inc., v. State Treasure 458 U.S. proper abrogation the EPA constituted a 683 n. 102 S.Ct. 73 L.Ed.2d immunity. of Eleventh Amendment (1982)(plurality opinion)(quoting Commerce, v. Michigan Dep’t Timmer Jordan, 651, 678, Edelman 415 U.S. (6th Cir.1997). 104 F.3d 833 (1974)); S.Ct. 39 L.Ed.2d 662 see Schacht, also S.Ct. (stating precedent allows the provides Eleventh Amendment Eleventh Amendment to be first asserted that: J., appeal)(Kennedy, concurring); Ford Department Treasury Motor v. Co. power The Judicial United States Ind., 459, 467, 347, 89 323 U.S. any shall not be construed extend (1945)(considering L.Ed. 389 an Eleventh equity, in law or commenced or suit Amendment defense that was raised prosecuted against one of United Court). State, Supreme the first time before the of another States Citizens Because, supplemental briefing Subjects any Foreign be Citizens or Court, argued fore this that the State. KSU

817 507, 2157, long XI. have 117 S.Ct. 138 L.Ed.2d 624 amend. Courts U.S. Const. (1997), “that an un- language striking Religious this to mean down Free read (“RFRA”) is immune from suits eonsenting State dom Restoration Act because it citi brought by in federal courts her own power. exceeded that The Court conclud of another by well as citizens Congress authority zens as ed that has the to rem Jordan, 651, 415 U.S. Edelman v. edy prevent State.” and constitutional violations (1974). 663, 1347, 39 L.Ed.2d 662 94 S.Ct. if in process prohibits “even it conduct Nevertheless, recognized have that we which is not itself unconstitutional and in no Amendment bar in there is Eleventh ‘legislative spheres trudes into of autono ” (1) instances: when the state has three my previously reserved to the States.’ (2) suit; when Ex Parte consented to (citation 518, Id. at 117 S.Ct. 2157 omit (3) Young applies; and when exception ted). Nonetheless, Congress can not en Congress properly abrogated states’ right by force a constitutional changing Miller, immunity. v. 170 See Nelson right. giv substance of that “It has been Cir.1999). 641, 646 Whether enforce,’ power power en the ‘to not the to against Eleventh Amendment bars suits determine what constitutes a constitutional analysis EPA an states under the involves (cita at 519, 117 violation.” Id. S.Ct. 2157 exception. of this third omitted). acknowledged tion The Court dichotomy rights-en between After Seminole Tribe Florida rights-creation presents forcement and 44, 1114, Florida, 134 517 U.S. S.Ct. analysis. difficult line between “[T]he (1996),Congress abrogate L.Ed.2d 252 can remedy prevent measures or uncon immunity only un Eleventh Amendment stitutional actions and measures that make power der its Section 5 to enforce change governing in the law substantive Tribe Fourteenth Amendment. Seminole discern, easy Congress is not to and must two-pronged test to determine erected determining have wide latitude in where it First, validity abrogation. Section 519-20, lies....” Id. at 117 S.Ct. 2157. Congress we must whether “un determine a given To assess on what side of that line equivocally expresse[d] its intent to abro falls, required law the Court that there be 55, gate immunity.” Id. at 116 S.Ct. be congruence proportionality “a and Second, must we determine wheth injury prevented or tween the to be a valid Congress pursuant er acted ex ' adopted remedied and the means power. id. As the ercise of Section (emphasis end.” Id. at 117 S.Ct. 2157 explained Morgan, in Katzenbach v. Court added). Supreme The Court Florida 641, 651, 86 S.Ct. Postsecondary Ex Prepaid Education (1966), positive L.Ed.2d 828 Section 5 “is College Savings Bank fur pense Board v. authorizing grant legislative power Con Congress to invoke ther stated that “for gress to exercise its discretion deter identify transgressing § must conduct it mining legislation and what is whether the Fourteenth Amendment’s substantive guarantees needed to secure legislative provisions, and must tailor its Amendment.” Katzenbach Fourteenth remedying preventing such scheme appropriate went on to define Section 527 U.S. conduct.” 1) may be legislation legislation that: (1999). 144 L.Ed.2d575 to enforce the regarded as enactment 2) clause; equal protection plainly congruence proportionali Under its 3) end; adapted prohibit is not test, ty City Boerne Court struck ed but is consistent with the letter transgressing Congress’s down RFRA for of the Constitution. See id. spirit pri It did three power. Section 5 so for First, mary the Court found the Supreme further clari reasons. Court examples Congress’s legislative fied the extent of Section 5 record barren Flores, bigotry, exhibiting religious City Boerne v. 521 U.S. modern laws power than weigh practices which to ment decisions and would giving little basis alongside the remedial presented” illegal “evil be under the Fourteenth Amend- 530-31, 521 at at-, measures enacted. U.S. ment. See id. 120 S.Ct. at 647.4 2157; Prepaid, 117 see Florida 527 Second, S.Ct. legisla- the Court found that the 639-41, (explain at 2207 U.S. at support tive record did not the conclusion Boeme, City that in the Court held ing ADEA pro- that the constituted reasonable of that “RFRA failed to meet this test be phylactic legislation rooting out those in- in the support cause there was little record age stances of discrimination that were supposedly animated for the concerns that equal sufficiently arbitrary pro- to violate law”). Second, RFRA the the Court found legislative parsed tection. Court the “ supposed proportion ‘so out of to reme record, any it of finding void concrete object’ that it could not preventive dial or showing that governments states and local to, or responsive be understood ‘as de unconstitutionally discriminating had been signed prevent, unconstitutional behav elderly. against the Based on what ” Id, Boerne, (quoting City 521 ior.’ of findings, deemed insubstantial the Court 2157). Third, at 117 the S.Ct. concluded: the fact that RFRA Court focused on re- Congress virtually had no reason to be- compelling instituted a interest standard governments lieve that state and local assessing validity of burdens on the unconstitutionally discriminating were religion of standard that free exercise —a against employees their on the basis of rejected Employment had Divi been age.... Congress’ failure to uncover Smith, 872, 110 sion v. 494 U.S. S.Ct. any significant pattern of unconstitution- (1990) 108 L.Ed.2d 876 underscore —to al discrimination here confirms that intending Congress was “substan Congress had no reason to believe that holding.” tive alteration of Smith [the ] prophylactic legislation broad was neces- Boerne, 117 City 521 U.S. S.Ct. sary in this field. reasons, For all 2157. of these Court princi held that RFRA “contradicts vital --, Id. at In 120 S.Ct. at 649-50. separation maintain ples necessary to light scope of the “indiscriminate powers Id. at and the federal balance.” requirements, Act’s substantive and the 536, 117 2157. S.Ct. lack of widespread evidence of and uncon- Applying congruence propor age stitutional discrimination Boerne, tionality City test from the Su States,” ADEA the Court held that preme Court Kimel held that the ADEA § an invalid of Congress’s exercise § inappropriate was also an exercise of at-, power. Id. at 650. S.Ct. Kimel, power. essentially the Court First, steps. took two it found that the requirements ADEA im “substantive years ago, Three held this Court

poses governments on state and local are EPA proper Timmer was a any disproportionate to unconstitutional Congress’s exercise of 5 power, Section conceivably targeted conduct that could be at-, Congress’s abrogation and that of states’ Act.” 528 U.S. S.Ct. immunity proper. was therefore elderly See 645. The noted that the are Court class, F.3d at 837-42. The Timmer Court con suspect not a laws discrimi Congress cluded that both exhibited an nating age presump on the basis of are tively scrutiny. abrogate immunity possessed valid under rational basis intent to Thus, requisite power abrogate. ADEA the id. the Court found that prohibits substantially employ- controlling authority more state This decision is “un satisfy rejected argument equal protection 4. The Court needed an Kimel’s claim. BFOQ exception at-, to the ADEA raised the See id. 120 S.Ct. at 647-48. threshold violation to the level ADEA Act, age clas- the Kimel Court contrasted United inconsistent decision less an upon gender. sifications to those based modifica requires Court Supreme States sitting classifications, en Age governmental this Court unlike the decision or tion of gender, Salmi conduct based on race or cannot prior decision.” overrules banc relevant be characterized as “so seldom and Human Ser Secretary Health (6th Cir.1985). any legitimate to the achievement vices, 774 F.2d grounded interest that laws such if re state Kimel must therefore determine We considerations are deemed reflect of the Timmer deci modification quires antipathy.” Cleburne v. prejudice sion. Ctr., Inc., 473 Living Cleburne U.S. to find Timmer continues be that We 105 87 L.Ed.2d 313 S.Ct. to the authority respect with controlling (1985). persons, again, Older unlike under Seminole. prong first Florida on the those who discrimination suffer clearly Congress that Timmer Court held have not been gender, basis race or of sov- abrogate intent to state expressed its subjected “history purposeful to a the EPA. See 104 immunity under ereign unequal treatment.” any Kimel nor 837-38. Neither F.3d at (citation at-, 528 120 S.Ct. at 645 U.S. since Tim- Court decision Supreme other omitted) added). Further, (emphasis conclusion, so has cast doubt on mer emphasized, a state discrimi- Court when by conclusion. are bound that we gender, on the basis of courts re- nates hand, find that Kimel tighter the other we “a fit” between the discrimi- quire On they reconsider Timmer’s ends require natory legitimate does us to means and the at-, EPA constituted a at 646 serve. See id. 120 S.Ct. conclusion immunity. of states’ v. proper abrogation (citing Mississippi Univ. Women Kimel, 718, 724, Supreme in Hogan, After its decision 458 102 S.Ct. U.S. (1982)). of certiorari and granted a writ L.Ed.2d 1090 Court 73 decision con vacated a Seventh Circuit from Kimel Taking these words did, that the EPA cluding, as Timmer seriously, the remedial we conclude abrogation of states’ comprised proper EPA is indeed introduced scheme v. Var immunity. See Illinois State Univ. Congress’s proportional congruent — ner, -, 145 120 S.Ct. U.S. First, unlike the power. § 5 enforcement (2000), vacating Varner v. L.Ed.2d 806 RFRA, the EPA’s we find that ADEA and Univ., Illinois State dispro are not requirements substantive Cir.1998). the case The Court remanded to the unconstitutional conduct portionate Kimel, light in for further consideration fact, Act. In both targeted by the id., Tim- we will likewise reconsider see so con and this Court have Supreme Court so, doing in In we light mer of Kimel. target EPA’s sistently held that con only Kimel bolsters the conclude that intentional, wage discrimina gender-based Congress properly in Timmer that clusion a number of They have articulated tion. immunity abrogated Eleventh Amendment for this conclusion. reasons the EPA to the states. expanding in First, tar- language of the statute discrimination, stating that gets intentional suggested dicta that The Kimel Court ... be- discriminate employer no “shall § discrimi- legislation addresses whether of sex on the basis employees tween class such against protected nation ... at a rate wages employees “congruence paying shapes race gender or wages pays he than the rate at which City less analysis proportionality” opposite sex.” employees of the ways. finding in important Boeme 206(d)(1). Supreme Court § As the ADEA U.S.C. of the requirements the substantive the statute and looking conceivable stated to the disproportionate were Act history, purpose the central by the targeted conduct unconstitutional discrimination, “endemic remedy problem” providing a handful of de- wage legitimate structures have been based “on an fenses that account for causes of man, wage but ancient outmoded belief that differentials. 29 U.S.C. 206(d)(1) society, § (providing employer because of his role should be with de- though woman paid payment more than a even his fenses that differential is due to a Corning seniority system, system, system duties are the same.” Glass a merit Brennan, 188, 195, v. earnings by quantity Works 94 which measures or (1974).5 2223, 41 Looking quality production, S.Ct. L.Ed.2d differential prohibition any both this affirmative “based on other factor other than sex”). EPA statute as well as the structure of an These are designed defenses “to defense, infra, equates see this Circuit application wage confine the of the Act to liability EPA for discrimination “on the differentials attributable to sex discrimina- Gunther, liability basis of sex” with County Washington under Title VII tion.” 161, 170, for intentional sex discrimination. See 452 U.S. (1981). Educ., County v. Breathitt Buntin Bd. L.Ed.2d 751 we While do not be- (6th 796, Cir.1998); 801 Korte v. that liability lieve standards under the (6th Cir.1990). Diemer, 954, Equal 909 959 Protection Clause and the EPA are

identical, they sufficiently are similar such Moreover, the EPA’s remedial wage most cases of state-sponsored scheme is proportional to its anti-discrimi explanation discrimination that have no natory A state intentionally aims. equal “other than sex” also constitute pro- gender discriminates on the basis vio tection violations under the Constitution. lates the Fourteenth Amendment unless Although may EPA bring within its the gender-based classification serves im conduct, sweep some constitutional portant governmental objectives and the slight overreaching falls well within Con- discriminatory employed means “are sub gress’s power “reasonably to enact pro- stantially related to the achievement of phylactic legislation” to address intention- Kimel, objectives.” al, those 528 at Kimel, U.S. gender-based discrimination. -, 120 at (quoting Hogan, S.Ct. 458 at-, 528 U.S. at S.Ct. 648. 3331).

U.S. 102 S.Ct. This showing requires “exceedingly persuasive justifi- ADEA, then, Unlike the the EPA gender cation” for discrimination. United prohibit substantially does not more state Virginia, States v. employment practices decisions and than (1996). S.Ct. 135 L.Ed.2d 735 In likely would be held unconstitutional under ADEA, contrast to the which Kimel held applicable equal protection standard. “prohibited] Kimel, very likely at-, little conduct to 528 U.S. 120 S.Ct. at Cf. unconstitutional,” at-, held be 528 U.S. contrary, 648. To the the EPA enforces liability the standard for already and remedies existent constitution closely under the EPA approximates the al rights. See Hundertmark v. State of equal protection analysis state-spon- Dep’t Fla. Transport., 205 F.3d (11th Cir.2000). gender sored discrimination. Congress 1276-77 Congress’s abro designed target wage the EPA to gation immunity differen- pursuant state to the tials unexplainable gender-based due to EPA proper,6 is therefore al- KSU’s original only targeted While EPA 6. We Congress such are untroubled the fact that legislative findings did not make extensive private industry, expand- discrimination in discriminatory practices states’ when it ex- against ed the EPA states 1974. See panded the EPA to the states in 1974. Lack County Hosp., Marshall Owensboro-Daviess legislative findings is not determinative of (6th Cir.1978). type 581 F.2d 116 But the Kimel, at-, inquiry. § 528 U.S. Congress attempting discrimination 649; Prepaid, 120 S.Ct. at Florida 527 U.S. at root out was the same: intentional discrimi- 643-47, Kimel, 119 S.Ct. at 2209-10. nation. only legislative findings Court considered af- is defined as “suffi- prima [A] not shielded the EPA is violation of leged facie get case to type evidence in cient Amendment. by the Eleventh a for directed ver- past motion plaintiff to dismiss jury in a case or motion dict III. case; it is the nonjury in a necessary require pro- defendant to A. Law Dic- with his case.” Black’s ceed argument address Kovacevich’s nextWe ed.1990). finding tionary 1190 by granting court erred prima a facie plaintiff proven has law on matter of judgment as a KSU proceed case forces the defendant not made she had claims because several necessarily case. It with its follows First, facie case. prima a out then, is not that the defendant entitled of law on as matter judgment issued a a matter of law or sum- judgment claim at disparate treatment Kovacevich’s proven judgment plaintiff has mary if part case in be- KSU’s conclusion of Following a trial prima its case. facie prima make out a failed to she had cause court, merits, the district there- on the Second, post- it rendered facie case. fore, to a consideration cannot return of law on as a matter verdict proven plaintiff whether she ADEA because claim Kovacevich’s preliminary matter case. This is facie case.7 to make out failed at a later time. cannot be revisited which argues that the district Kovacevich clear statement of F.3d at 861. This cir- in each instance contravened approach the issue here. appear would to resolve law agree. caselaw. We cuit However, rea district court the recognized, court As the district to Avery appears Dennison soned that Avery v. decision in EEOC this Court’s decision, and a circuit also prior contradict 858, Corporation, 104 F.3d 862 Dennison logical sense. The district makes little that, (6th Cir.1997), af clearly establishes that it court stated merits, reviewing court the a a trial on ter of Sixth Cir- recognize[d] the existence of the on elements not focus the should a trial authority suggesting assess the cuit case but should prima facie case prima the facie cannot Rely revisit question discrimination. ultimate trial, [citing Avery onset of after the Postal Ser heavily on United States ing However, in another Sixth 711, 717, Aikens, Dennison] 460 v. U.S. vice Board Court (1983), case the Sixth Circuit 1478, the Circuit 403 75 S.Ct. L.Ed.2d 103 in a “plaintiff that a Appeals explained Court stated: Avery Dennison face, legislative record as in need to search determining the ADEA its ter on employ- Congress's, substantially by more more state We are satisfied prohibited Kimel. practices than would like- enacting original finding decisions EPA general ment under the Four- ly be held unconstitutional outmoded wage are due to differentials at-, 120 Amendment. See 528 teenth value of men’s beliefs about relative that the reasoned at 647. The Court Works, S.Ct. work, Corning 417 Glass see women's findings assist the Court legislative would 2223, 195, combined with the 94 S.Ct. U.S. at over-reaching was a re- determining if this subjected a to women been fact that have Congressional prophylactic to a due quired purposeful unequal treatment more history of pattern of uncon- there a conclusion at-, Kimel, 120 528 U.S. generally. See by the states age discrimination stitutional 645. S.Ct. at enough justify the law. See id. substantial at-, Because at 648-49. 120 S.Ct. prima of the Recognizing that treatment 7. EPA, language the combination prece- afoul of circuit possibly facie case ran provides, and the intermediate defenses it dent, made alternative the district court discrimination, gender scrutiny applied to trier of reasonable fact that no determination not the EPA does us to conclude that leads substantially on the Kovacevich ulti- have found for could largely constitu- into overreach at J.A. question of place, mate discrimination. activity there is no in the first tional (6th disparate prove Mgmt, treatment case must to Food 72 F.3d Cir. factfinder, 1996) (“Since preponderance proceeded this case trial evidence, component that each merits, review, on the on this does Court prima case has been satis- [the] not revisit Douglas [Corp. the McDonnell facie Co., fied.” v. General Elec. Green, v. 411 U.S. Gafford (6th Cir.1993). F.2d These de- (1973)7 analysis L.Ed.2d 668 of whether wholly cisions seem inconsistent because plaintiff prima established a facie case if a jury needs to make determination Rather, of discrimination. we di proceed as to not a plaintiff whether or has rectly to the question ultimate of whether proven prima facie aby prepon- case plaintiff proof carried her burden of evidence, surely derance of the a trial discriminatory discharge.”); Wilson legal court should be able to make Co., Firestone Tire & Rubber 932 F.2d jury determination that no reasonable (6th Cir.1991) 510, 513-14 (holding that the plaintiff could prov- conclude that prima question facie is not reviewed “since prima en her facie a preponder- case trial”); proceeded the matter Fields v. ance of the evidence. (6th Cir.1984) Bolger, 723 F.2d Presumably, by pointing J.A. 91.8 out (reviewing the “ultimate issue” than rather conflict, calling the court is on us to Further, prima facie showing). since reading Gafford, heed its Avery and not Dennison, Avery this Circuit has relied on Dennison, since we prior must defer to a opinion and the central proposition for case panel when two conflict. decisions which it stands. See Brocklehurst v. PPG Salmi, generally 774 F.2d at 689. Un- Indus., Inc., 897 n. 5 logic, der this the court found Kovacevich Cir.1997) (“Because this case has been ful to have failed make out a facie merits, ly on the may question tried we both her Title ADEA VII and whether Brocklehurst established a claims.9 case.”) Dennison, (citing Avery Notwithstanding 860). doubts, we Avery find that the rule from logic anchoring Suggs-Wilson- legal ground, Dennison rests on firm Fields line of cases is the same as that in not apply we do hesitate to its well-estab- Moreover, Avery Dennison. all of these First, rule in lished this case. the district cases adhere to the Aikens Court’s discus court incorrectly Avery characterizes Den- played by sion of the role prima the facie nison as an isolated decision within the case. Aikens involved a fact, postal black circuit. In emerges from a series worker who brought a Title suit analogous Circuit cases with VII analyses of case, against the prima the U.S. Postal Service. After a holding facie that once trial, merits, has bench there been a trial on the the district court judg entered appellate Service, court ment in can not revisit favor of the Postal finding whether the plaintiff established her prima facie case. that Aikens had prima not met his facie See, e.g., Suggs v. ServiceMaster Educ. appellate reversal, case. After an court 8. The reasoning district court couched this able situation when a defendant moves for granted judgment when it summary judgment.” on Kovacevich's Id. at 1130. The deci claim, sion, ADEA although not her EPA argues, its the court emanates from a "mis claim— logic applies to both decisions. KSU makes interpretation” Supreme Court's deci argument generally the more Aikens, Dennison, its briefs. (citing Avery sion in id. 104 J., (Ryan, dissenting)), F.3d at 865-66 also "seems to 9. We be in conflict" with the note that this is but one several cases Gafford decision. Id. at where the 1130. See also v. district court has criticized the Coleman Us, Inc., Avery Toys "R" F.Supp. Dennison decision. v. Cleve 976 Petrone 719 Univ., (N.D.Ohio (N.D.Ohio 1997) F.Supp. (stating land State Avery 993 1119 that Dennison 1998), Aikens, the Avery misinterprets holding district court decried Denni- and that "is placing son wholly Gafford). as "the district court in an unten inconsistent” with

823 First, not Aikens was limited the district kens. addressed Court Supreme the parties’ argu- following judge’s rejection a the bench decision—and trials court’s motion, whether Aikens focused on verdict as the ments —which a directed district facie case. prima a made out suggested elsewhere. Pe court has fully tried on the trone, ease was that F.Supp. (stating Because at 1130 parties find the merits, surprising to it is be Avery misapplied Aikens Dennison Appeals still address- and the Court “con Supreme the Court cause Aikens made whether Aikens question ing the could cluded that think that case. We prima out a facie plaintiffs not the had revisit whether or terms, framing the issue these in a trial proven prima facie case bench ulti- unnecessarily evaded the they have concluding, at the close of previously after non. vel of discrimination question mate chief, plaintiffs’ the the case 713-14, Aikens, 103 S.Ct. 460 U.S. made”); also had been see facie case The elaborated Court Dennison, F.3d at Avery 865-66 “sensible, orderly merely poses stage J., dissenting) (distinguishing Ai- (Ryan, bring evidence” and way to evaluate manner). Ai- Although kens in same inquiry— the central factual case trial, a bench as well as kens involved intentionally dis- the defendant “whether that followed district decision Id. at plaintiff.” against criminated plaintiffs after refusal to dismiss Dep’t (quoting Texas S.Ct. ver moved for a directed the defendant Burdine, 450 U.S. Community Affairs Aikens, dict, at 714 n. see 460 U.S. 248, 253, 67 L.Ed.2d no the Court made effort S.Ct. (1981)). Thus, procedural discussion to narrow its every- the defendant done [w]here Indeed, discussing when circumstance. of him if required would be thing that case, prima facie the Aikens the role of the out a properly had made plaintiff stating broadly, uncondition spoke Court case, plaintiff whether prima facie should not ally judges revisit district longer did so is no relevant. really pre case once a defendant has prima facie it all evi- court has before nondiscriminatory of its sented evidence “the needs to decide whether dence it has been tried on reason and the case discriminated intentionally defendant 714, 103 S.Ct. 460 U.S. at merits. See plaintiff.” against nor explicitly neither Court 1478. The Burdine, 450 U.S. at (quoting Id. to bench limited this statement implicitly added). 1089) Because (emphasis S.Ct. fact, opposed those findings of “produc included defendant’s the record Fur court contends. jury, district as the the dispute over tion” and thermore, emphasis little placed Court the discrimination, District “the intentional had Postal that the Service on the fact proceeded in case should this have Court case, in the verdict motion filed a directed dis question intentional specific [of to this See only passing. fact mentioning that appellate Id. The directly.” crimination] (“It 4, appears 1478 103 S.Ct. id. at 714 n. id. have done the same. See court should trial the District point the that at one 713-14, By framing the 1478. at 103 S.Ct. aout that Aikens had made case, the Court decided prima of the facie in terms issue added). case.”) Per (emphasis “unnecessarily prima evaded facie parties and courts Aikens, impres vel breadth of question ceiving the discrimination the ultimate 714, 103 ap at S.Ct. 1478. courts appellate non.” Id. have sive number way that same holding the plied its language demon- holding its Both regardless of wheth Avery Dennison case, as is not a narrow strate that Aikens did— was bench proceeding below er the argues it court assumes when the trial, regardless of whether jury “misinterpreted” Ai- Avery that Dennison 824 previously opinions.

trial court had addressed a mo- portion The court focuses on the tion for on the law.10 rejecting plaintiffs argu- Gafford ment that the district court erred sub- appellate Nor was Aikens limited to mitting jury question to the of whether review, court court suggest- as prima facie case had been established. Avery ed when stated that Dennison is F.2d at Stating 997 168. untenable for district courts. Aikens finder prima of fact must find the facie made fundamental observations about the in a disparate satisfied treatment purpose and structure of the McDonnell case, Burdine, (citing see id. at 168 450 Douglas steps test and the both trial and 252-54, 1089), appellate courts must take to adhere to Gaf- Court reasoned that whether a prima Thus, purpose. though broader even ford facie case has been established is a matter opinion is in the often cited context of Thus, of both fact and law. “it was see, Brocklehurst, review, appellate e.g., per error se for the district court to have 5, 123 F.3d at n. 897 Aikens lower question submitted the jury.” [ ] Id. court decisions interpreting Aikens have at 169. Contrary to the district court’s applied logic to both district court re- analysis, Avery Dennison does not contra- view of appellate verdicts as well as re- dict Aikens, any this conclusion in 714, more view. See 460 U.S. at 103 Gafford While, than Aikens contradicts Burdine. (expressing “surpris[e]” S.Ct. 1478 that the states, Appeals pri- Court of the elements of the prima focused on the Gafford case); ma go facie id. at 103 facie case can indeed before a jury, S.Ct. 1478 (stating Avery that the district court Aikens and simply “erroneous- Dennison state ly question focused on the prima facie in reviewing a trial that proceeds directly case rather than question of beyond prima stage, neither the discrimination”); also, Barnes, e.g., see appellate district court nor court should F.2d at 1100 (criticizing the district court question refocus on plain- of whether a for focusing prima on the facie case after a tiff her prima They established facie case. merits); Hayman, bench trial on the 23 should instead look to the ques- ultimate (“Because Appellant’s F.3d claim Aikens, tion of discrimination. See below, fully was tried on the merits U.S. at 103 S.Ct. 1478. The district district court had no reason to base its simply ignoring or misreading Ai- judgment on supposed Ap- deficiencies in if, when it kens states that under Gafford, case.”). pellant’s prima facie The rule a jury can determine whether a from applies appellate Aikens thus facie case proved, “surely has been a trial courts and district courts alike. court should be legal able make a deter-

Finally, the district mination that no jury court’s contention reasonable could Avery plaintiff Dennison contradicts conclude that a proven her holding Court’s misreads by preponderance both facie case Gafford See, Co., verdict); e.g., notwithstanding ment v. Puerto Rico Oil Sanchez Diettrich (1st Cir.1994) (bench trial); F.3d Airlines, Inc., 168 F.3d v. Northwest Services, Inc., Coffey v. Dobbs Int’l (7th Cir.1999) trial); (jury E.E.O.C. v. Univer- (2d Cir.1999) (jury trial on the mer Oklahoma., sity 714 1004-05 its, where no directed motion verdict trial, Cir.1985) (jury following judgment made); Berndt v. Kaiser Aluminum & Chem. verdict.) (Seth, J., notwithstanding the con- 253, Sales, Inc., (3d Cir.1986) 789 F.2d 257 974, Bd., curring); Green v. School 25 F.3d (jury filed); trial with directed verdict motion (11th Cir.1994) (bench trial); 978 Barbour v. Communications, Dockins v. Benchmark 176 1342, Browner, (D.C.Cir.1999) 181 F.3d 1347 (4th Cir.1999) (bench trial); F.3d 747 law); (jury verdict overturned as matter of Inc., 778 F.2d Freight Sys., Barnes v. Yellow Sciences, Hayman Academy v. National 23 of (5th Cir.1985) (bench trial); 1100-01 (D.C.Cir.1994) verdict, (jury F.3d 537 Merwine v. Board Trustees State Institu following judgment notwithstanding the ver- Learning, Higher tions 636- dict) (5th Cir.1985) trial, (juiy following judg- considering the from ing prevent court us to Athens instructs at 91. J.A. evidence.” prima bears on that that also otherwise. long it does so in order to as facie case falls sum, Avery Dennison because question ultimate of discrimi- address the analogous line of well-established within a Indeed, that is what we do below. nation. accurately caselaw, it because Circuit Sixth the D.C. That also what Athens, it does not because infra. and reflects in Coffey, First did and Circuit Circuit in holding applies Gafford, contradict Barbour, 181 F.3d at at 326-27 and F.3d Moreover, there is no basis this case. that, despite 1347, respectively as a distinguish Avery Dennison KSU to —decisions we contrary, to the Judge view Gilman’s case, EPA or ADEA “not an Title VII ap- with our fully consistent find be 16. Both Athens to Br. at claim.” KSU’s today. the broadly of speak proach Avery Dennison and in cases discrimina prima facie purpose Avery with Judge Gilman’s discomfort them suits, opinions those and neither tion allegedly it be that appears Dennison applying selves, caselaw nor later circuit “semantics,” represents triumph the

Athens, to the Title VII context. is limited over and “nomenclature” “terminology” Inc., Security, See, v. Yale e.g., Phelps this, But in the concurrence substance. Cir.1993) (6th 1020, 1023-24 (applying F.2d Athens, and, point a central overlooks case); v. Adams in ADEA Soto Athens an indeed, appellate element of a fundamental Co., Equip. Elevator Dennison, Avery Similar review. Cir.1991) an Athens rule for (utilizing the Supreme Court reversed the Athens an ADEA case claim, pointing to EPA precisely decision a bench-trial remanded used). We therefore it was also where court, as the deciding as well because assertion district reject court’s contin parties, court and had appellate prior with case- conflicts Avery Dennison ” of terms [] issue uously “frame[d] in applied ought law be case even after prima facie Aikens’s To the extent stance. on the merits. 460 tried on the ADEA and granted added). (emphasis failed Kovacevich claims Title VII because would minimize the concurrence While case, erred it out her to make “frame” re their “terms” which courts of law. as matter “semantics,” deci the Athens view as mere respond Finally, compelled we feel the fact that hinged on sion Judge Gilman’s criticism briefly to confi undermined errant “terms” court’s First, some overreading Avery Dennison. As rendered. had in the decision dence dicta, the concur- Avery Dennison’s inappropri given explained, the Court holding. decision’s misstates that rence re applicable ate characterization held to have not read the decision We do lower view, certain that” the cannot be “we question cannot district court that “the by its were not influenced findings fa- constituting plaintiff’s proof 719, 103 law.” Id. at view of the “mistaken pro- is allowed to once the action cie case words, reviewing to a In other 1478. S.Ct. trial,” Like our deci- Post ceed to a lower court court, language the written Athens, Avery like in this case and sion deci legal and factual to frame its uses simple proposi- for the Dennison stands the ra assessing indispensable sions is a dis- the facts of reviewing tion that those correctness of tionale behind and there has been claim after crimination Athens, if aspect of Given this outcomes. merits, a district court full on the trial he to battle wishes what Judge Gilman ulti- focus appellate court must over triumph of “semantics” sees as rather of discrimination question mate substance, wage that battle will have to he her plaintiff a made out whether than on level. course, higher at a there noth- is case. Of prima facie agree Judge Avery

We course with and pose “trap Dennison a for un- that, Gilman even after district court wary district judges,” court we are confi- framework, faulty reviewing uses a court dent that this Circuit’s district courts are complete can itself look at a record to- sufficiently wary to take binding note of using proper decide the case mode of circuit and Supreme Court caselaw and review. That is what we do in this case. apply accordingly. required possible

But that is neither nor case, every as the concurrence seems to B. suggest. (criticizing Avery See Post at 838 reversing Dennison remanding for and Kovacevich argues next that the district “affirming rather than on different court in granting erred KSU a grounds correcting after as a matter of law on her EPA claim. We terminology”). cases where the agree. record is not sufficient to allow the review ing court to question address the ultimate discrimination, appropriate. remand is The EPA provides that no cov This is precisely Supreme what the Court employer ered shall discriminate “between Aikens, did in see 460 U.S. at employees on the basis of ... equal sex (remanding S.Ct. 1478 for the district jobs work on the performance of which to reconsider whether the Postal skill, effort, requires equal responsibil Service against using discriminated Aikens ity, and which are performed under similar review), and, proper consistent with Timmer, working conditions.” 104 F.3d at

Aikens, what this in Avery Court did Den 206(d)(1)). § (quoting 29 U.S.C. To nison. (explaining F.3d at 863 establish a facie case for an EPA that a necessary remand was because the claim, a plaintiff must show that an em record incomplete and the court was ployer paid wages different employee to an unable to make a determination on the discrimination). opposite of the sex substantially equal ultimate issue of “ ‘Equal work. See id. work’ does not Finally, perceive we do not the “confu- require jobs identical, that the only be but sion in the circuit” detected Judge Gil- there exist equality ‘substantial man. certainly We do not find confusion skill, effort, responsibility working Judge Ryan demonstrated the fact that Buntin, conditions.’” 134 F.3d at 799 itself, Avery dissented in Dennison or that (quoting Nucare, Inc., Odomes v. a lone district court repeatedly refused (6th Cir.1981)). 246, 250 if To determine apply holding. To contrary, work is substantially equal, a court must numerous decisions this circuit and oth- work, make “an comparison overall understood, ers have explained applied segments.” not its individual Id. Once the logic Avery central of Aikens and Den- plaintiff case, establishes a circumstances, in variety nison as we prove by defendant must preponderance do supra. here. See n. Perhaps the of the evidence that wage differential puzzlement concurrence’s stems from the justified under one of the four affirma parts fact that it finds of Aikens itself to tive defenses set forth in Equal Pay be cryptic,” “rather a sentiment we have (1) (2) Act: a seniority system; not found other courts a merit expressed to have (3) concise, system; system about the which six-page opinion that measures (with enjoyed earnings by quantity an eight-Justice quality produc or majority (4) result). tion; concurring any ninth other Nonethe- factor other than less, confusion, 206(d)(1); if any § there is latent sex. See 29 Corning we U.S.C. Works, hope 196-97, that our today treatment further Glass 417 U.S. at 2223; Buntin, clarifies meaning 799; Timmer, of both cases. As for 134 F.3d at Judge Gilman’s concern that this decision 104 F.3d at 843. The proving burden for chronology while at rable work KSU. the basis for than sex is factor other that a hav- quite at is similar: of their time KSU heavy one. See is a wage differential year of one within one ing been hired Buntin, 134 F.3d experience; un- prior another with similar a trial on there was Because requirements dertaking the same workload merits, Aikens dictates there; the same de- working within while reviewing in duty and this Court’s evaluated un- having been partment; wheth “not to determine [ ] that verdict is in by criteria the same FAC der the same each element established er [Kovacevich] Despite some differences years. the same case, [KSU] or whether of her fade KSU, pointed out experiences in their of an affir evidence sufficient presented fight circumstances looking at these Soto, 941 F.2d at 549. defense.” mative Kovacevich, we conclude favorable to most light Rather, looking at the evidence argument support there for her Kovacevich, we must favorable most com- roughly were professors that the two reasonably could jury whether decide no There is also parable professionally. EPA violated the that KSU have believed they different sala- question that received less than Zucker- Kovacevich by paying Kovacevich’s retire- by the time of ries — id.; see gender. her man because of $5,999 than pay was less ment her 715-16, Aikens, 103 S.Ct. U.S. also Zuckerman’s. appellate (stating that the district question the ultimate argued must consider that Kovace- Although courts KSU oc intentional discrimination of whether due to the school’s salary lower vich’s curred). issue genuine be no There must per- and across-the-board system merit pay is due the difference increases, as to whether introduced Kovacevich centage Buntin, than sex. See a factor other justifications did these evidence course, evidence that at 800. Of on basis discrimination preclude of the upon elements bears she adduced importantly, Most gender. assessing play in can also come into rather than a neu- showing that evidence question of discrimination. the ultimate anonymous system of merit based tral Plumbing Prod v. Sanderson See Reeves evaluations, system merit award peer — -, ucts, Inc., -, opaque, decision- largely was driven (2000)(taking 147 L.Ed.2d level, making process at the administrative supporting account the evidence into peers’ assess- necessarily reflect did not part of its prima facie case plaintiffs and re- performances, applicants’ ment question” “ultimate consideration to women. disproportionately men warded Barbour, discrimination); intentional by a instance, report prepared For Green, 1347; 978. 25 F.3d at F.3d at to re- appointed faculty committee special of discrimi- charges to Kovacevich’s spond of current “the nature noted that nation totality of evidence Looking at the that deans and suggests procedures merit record, that Kovacevich size we find control the in the quasi-independently chairs for a reason introduced sufficient of merit awards:” salary was that her lower juror to find able is done peers] faculty ranking [The Despite discrimination. gender a result of essentially with- independently of—and defense, disagree we strong factual KSU’s (if amount knowledge of—the dollar out was enti court that KSU

with particular rank- attached to any) to be of law. prevail as a matter tled to then use these Department chairs ing. criteria) (as rankings well as other First, fight in a looking at the evidence awards. merit actual dollar Kovacevich, recommend a reasonable most favorable then for- are recommendations and Zuck- Chairs’ find that Kovacevich juror could Dean, may support, who warded to the compa- differently for were treated erman decrease, or the increase Chairs’ recom- find the district court’s order of Moreover, mendations. inconse- as a matter of law for KSU was in error. quential over increases and above de-

partmental may recommendations C. be faculty awarded to some members verdict, Prior to the jury Dean, the portion since a substantial court granted judgment as a matter of law ... college’s pool the merit is reserved disparate aspect KSU on the treatment discretionary the Dean’s fund specifi- claim, of Kovacevich’s Title VII which en- cally purpose. for this Since merit compassed a number separate allega- system in essence establishes hiatus trial, tions of discrimination. After the peer between evaluations and actual dol- court denied Kovacevich’s Rule 59 motion awarded, faculty lars influence on the decision, to reconsider that and Kovacevich size of merit awards is minimized. This now appeals the denial of that motion. condition sometimes extremely makes it demonstrate connection difficult 1. between peers’professional judgments of performance meritorious and the size We conclude that Kovacevich is merit awards. to judgment entitled in her favor on the added). wage J.A. at 964-65 discrimination (emphasis An in element of her Title ternal memorandum for KSU administra VII claim. Title VII deems it an unlawful tors also college described the con employment practice dean’s “to discriminate portion trol over a of the merit against award any respect individual with to his funds. The record also showed that under compensation ... because of such individu system, college dean on three 2000e-2(a). § al’s ... sex.” U.S.C. occasions either reduced or disallowed en Generally, a wage Title VII claim of dis tirely a merit award that Kovacevich’s de parallels crimination that of an EPA viola partment chair had recommended on her Buntin, tion. generally See 134 F.3d at behalf. faculty reported committee 801; Korte, 909 F.2d at 959. Neverthe that information on the reasons for these less, due to demanding the more threshold “unavailable,” just reductions was as “rec showing comparator in EPA con any ords of Mnd relating to merits deci text, wage “claims for sex-based discrimi virtually sions are nonexistent.” J.A. at brought nation can be under Title VII Finally, Kovacevich discussed at though even no member of opposite length the results of her own research on sex equal job.” but higher paying holds disparity in merit awarded to her de Indus., Henry Inc., v. Lennox partment’s male and professors. female Cir.1985) Gunther, (quoting She stated that forty from 1988 to 2242). U.S. S.Ct. At the percent of department males in her re time, same the Bennett Amendment average ceived above merit awards while Title incorporates VII the EPA’s affirma only twenty-three percent of its female tive defenses prohibition into Title VII’s faculty did so. broadly, More Kovacevich gender-based wage discrimination. See disproportionate testified males were Gunther, 167-68, ly represented among top salary-earn 2000e-2(h)). 2242 (interpreting § 42 U.S.C. ers in department, her though even women up forty-seven made The district court percent faculty. erred as a mat evidence, Given this ter of combination of law when concluded after we be KSU’s proof lieve that genuine Kovacevich created a that Kovacevich had failed to make issue as to whether out her the difference her facie case under Title VII. pay sex, case, Zuckerman’s was due to After the presented defendant has due to a factor other than sex. See Bun only district court can review whether tin, reason, 134 F.3d at 800. For that we there a genuine respect issue with to the may shown in one of be tinuing violations of discrimination. question ultimate there is first is “where ways. The two Moreover, court erred supra. discriminatory present some motion for Kovacevich’s it denied when a claim of a continu activity giving rise to by point- verdict after the reconsideration violation,” one of the and “at least ing EPA. For defenses under KSU’s ing to discriminatory oc [has] acts forbidden above, de- despite KSU’s stated reasons peri the relevant limitations curred within as to remained fenses, issue genuine a (citation Haithcock, F.2d at 678 od.” 958 relative salary Kovacevich’s lower whether omitted) sec original). in The (emphasis gender dis- from resulted to Zuckerman exists continuing violation type of ond Circuit, finding a of In this crimination. long a has demonstrated plaintiff when a Act Pay requires Equal liability under over-arching policy of dis standing and VII liability under Title of finding a similar a This requires id. crimination. See the same con- present claims where both the evi of showing by preponderance a Buntin, 134 F.3d See and evidence. duct dis of intentional dence “that some form Korte, Because 801; at 959. 909 F.2d at class of which against crimination legally verdict was the EPA hold that we company’s was the was a member plaintiff pre- sound, entitled is also Kovacevich ” procedure.’ EEOC ‘standing operating disparate treatment Title VII her vail on Co., 835, F.2d Publ’g 851 Indus. v. Penton We wage discrimination. regarding claim Cir.1988) omitted). (citation (6th 838 damages for of for a determination remand this claim. category of the first Regarding violation, has not Kovacevich

continuing falls event that appropriate alleged reinstate- denied also The filing an 300-day period within Title dis- VII Kovacevich’s other ment of pro that the claims charge. She EEOC pro- of denial treatment claims—for parate was such an grievance her denial of vost’s workloads, and denial motion, disparate in unpersuasive event, argument is but this it found them adjustment salary that the denial precedent light circuit —because of limitations. by the statute to be barred discrimination from a for relief request so, “con- Kovacevich’s doing rejected discriminatory does itself constitute not agree We argument. tinuing violation” of limitations. tolls the statute act that conclusion. with the district F.2d Corp., v. Bendix 823 See Janikowski Cir.1987). (6th can 945, Kovacevich 948 “continuing violation” doc The “continuing category-one claim thus not ongo “there is an that provides when trine violation.” discriminatory ing, continuous series alternative, must Kovacevich In the challenged in their en acts, may be they evidence by preponderance show those discriminato long as one of tirety as over-arching policy has an KSU period.” limitations within the ry acts falls that. —a dis (6th procedure” Frank, 671, “standing operating 677 958 F.2d v. Haithcock —of aspects or other promotion Cir.1992). con crimination words, when a In other Penton, at 838. 851 F.2d employment. shown, is plaintiff “a tinuing violation “something show means she must This all rele consider have a court entitled to discriminatory than the existence more pursuant taken allegedly vant actions Haithcock, 958 in [her] case.” treatment discriminatory policy employer’s not that has she F.2d 679. We conclude including would other those practice, Regarding high met threshold. Local Alexander v. be time barred.” wise not did Am., promotions, she of her own N. 177 denial Int’l Laborers’ Union of discrimination any (6th Cir.1999); Held establish see also F.3d (6th her, acknowledging herself against Co., Oil Gulf pro- expected receive she had Cir.1982). held con- This Court Alexander, motion 1978 and 1983 and plaintiff belongs. that her 177 F.3d support 405; documentation in ap- Co., of the latter Scales v. J.C. & Bradford (6th plication was a “mess.” she Cir.1991); When next F.2d Abbott v. Inc.,

applied promotion grant- Forge, KSU Federal Cir.1990). promotion. ed the She also failed show plaintiff must first estab- consistently that the reason given for her lish a by identifying promoted failure to be lack of challenging specific schol- employment prac- —her tice, arship pretextual. somehow Al- and then show an “adverse effect” —-was though regularly she contends that offering KSU statistical evidence “of a kind or assigned faculty disparate women teaching degree sufficient to show that practice workloads, argument is not supported in question has caused the” adverse effect Scales, (cita- the record.11 question. 925 F.2d at 908 omitted). tion When a facie case is wage Outside of her claim for discrimi- established, the defendants must articulate nation, the evidence the record did not legitimate a business reason for the em- meet required standards to a show ployment practice. See id. aOnce defen- “continuing violation.” Kovacevich’s non- dant has legitimate articulated that busi- wage claims under Title are VII thus reason, ness the burden shifts back to the by barred the statute of limitations. plaintiff to show either employer’s that the pretext discrimination, reason ais for or D. that there an exists employ- alternative trial, After the granted practice ment that would achieve the same summary judgment on the bifurcated dis- business with ends a discriminatory less parate impact phase of the Title VII claim. impact. id. wage See In a discrimination The court reached two in mak- conclusions case, the Bennett Amendment allows a ing First, that decision. it found that the defendant to offer one of the affirmative supported KSU’s affirmative de- spelled defenses out in EPA, long so as that the system fense merit “legiti- was a legitimate it is a business reason. See necessity.” Second, mate business it held Co., v. Penney EEOC J.C. 843 F.2d that again, once the statute of limitations (6th Cir.1988). 253-54 disparate barred impact Kovacevich’s claim regarding promotions. disagree We We do not find the district conclusion, with its first although agree we analysis sufficient to affirm its sum with the second. mary judgment for wage KSU on the dis crimination claim. The court dismissed

Title proscribes only VII “not the claim with the followingreasoning: overt discrimination but practices also that form, are fair in discriminatory but in op undisputed [T]he evidence at trial re- Co., Griggs eration.” v. Duke Power vealed that KSU was entitled to a de- 424, 431, 28 L.Ed.2d 158 fense under the EPA as to Dr. Kovace- (1971). Thus, when bringing disparate Moreover, a salary. vich’s the evidence claim, impact plaintiffs clearly need not show that showed system the merit a discriminate, defendant intended to but and across the board percentage in- prove must particular creases, instead that a em both of which were implement- ployment practice, although neutral on its ed pursuant to the Bargaining Collective face, has produced significant Agreement, adverse adopted were legitimate for protected effect on a group to which the business reasons. Accordingly, Dr. Ko- 11. Kovacevich cites consistently, Professor Robinson’s faculty tes- women were more in- claim, timony support to this but Robinson important clined to treat that aspect as an actually suggested appeared that women vol- good what it takes to program run a than untarily to undertake more "scut work” than some of the male faculties.” J.A. at 254. counterparts. my experience, their male "In an for E. cannot maintain action

vacevich wages. her disparate impact to trial, At the end of Kovacevich complaint moved to amend her add certainly court is J.A. at 98. While the claim. retaliation She intended to show the prima facie statisti- beyond free to look for KSU retaliated work she under an proceed directly cal assessment examining took on her 1988 sabbatical gen defense, J.C. of KSU’s assessment cf. wage disparities higher der-based edu Co., 253-54, doing F.2d at Penney The court her cation. denied motion. She so whether Kovace- it must also consider decision, appeals arguing that because the employer’s vich showed either that KSU had itself discussed the sabbatical discrimination, or pretext reason was a case, presenting motion amend employ- there exists alternative have been granted. should We review a achieve the same practice ment would 15(b) deny Rule permit decision to discriminatory business ends with less motion amend abuse of discretion. Scales, As impact. See Strickler Associated Grow Pfister supra, light viewed in a most favor- stated ers, (6th Cir.1963). Inc., her, presented able to Kovacevich suffi- at trial to create a material cient evidence originally issues not When system issue as to whether merit “are pleading raised tried ex Moreover, we pretext for discrimination. or press implied parties,” consent of the 15(b) opinion from court’s can not discern the a judge Rule authorizes district to joint Kovacevich appendix permit filing pleading the whether the of an amended that is an argument necessary made a direct there the extent “to conform to the to employment practice presented which at trial. Fed.R.Civ.P. alternative evidence” 15(b); the ends with a less Hasselbrink v. 246 Speelman, could achieve same see (6th Cir.1957). 34, impact—an “Implied F.2d 39 con discriminatory alternative litigation requires sent” considerable of a showing available her even had she appear parties must that matter—“[i]t thus do not pretext. failed to show We the evidence to be aimed understood that mere statement believe Freight issue.” Yellow unpleaded Sys., system adopted merit Martin, (6th 353, F.2d Inc. v. 954 358 legitimate business reasons is sufficient Cir.1992). simply rule does The not exist judgment. justify summary light of change “to theories mid parties allow conclusion, we remand for the district Wilson, Donald v. 847 F.2d stream.” complete analysis a more court conduct Cir.1988). (6th 1191, The 1198 district is for Kovace- required whether trial by deny court not abuse its discretion did disparate impact claim. Because the vich’s do ing motion to amend. We Kovacevich’s tried, yet may has to be court find at trial to not the evidence introduced Kovacevich’s statistical address whether a case Title VII retaliation. establish pri- make a evidence was sufficient to out place. in the The rec- ma facie case first F. sufficiently for us ord before us is clear to make such a determination. argues that the district court Kovacevich types several evi- improperly excluded court that the agree We with at trial: a planned dence she show of limitations Kovacevich’s statute bars witness, study, expert and a statistical regarding pro- claim disparate impact order We show-cause OFCCP. motion. Given that she was last denied disagree. 1983, granted pro- promotion in and was in court’s deci applied when last We review a district motion she Title under Fed. 300-day of limitations under to exclude evidence statute sion discretion, view- clearly R.Evid. 403 for abuse passed. VII ing the light excluded evidence opinion) most (rejecting comparison pro proponent. favorable to the See Robinson fessors different university depart (6th Runyon, v. 149 F.3d Cir. ments); Dugan Univ., v. Ball State 1998). An abuse of discretion exists where (7th Cir.1987) 1136-37 (finding- reviewing firmly convinced plaintiffs statistical showing of discrimina that a mistake has been made. See id. unpersuasive tion because was “for the Even if a court abused its discretion in university large,” rather than for the evidence, excluding a decision will not be department question); Molthan Tem injustice disturbed if substantial did not Univ., ple (3d Cir.1985) 778 F.2d Indus., result. See Cooper McGowan v. (concluding that “statistical evidence of a Inc., Cir.1988). 863 F.2d general underrepresentation of women position professor district court of full excluded the adds little to a study statistical as irrelevant disparate impact claim”); under Fed. Zahorik v. Cor R.Evid. unfairly prejudicial Univ., (2d under Cir.1984) nell rules, Fed.R.Evid. 403. Under the federal (concluding gross statistics are judge should not admit evidence that is “meaningless departmental absent is, irrelevant —that evidence does not breakdown”). These courts have conclud “any have tendency to make the existence ed that wage when both promotion any fact probable ... more or less decisions are largely made individual probable than it would be without the evi departments rather than the broader uni dence.” Fed.R.Evid. 402. Federal Rule versity administration, they are in this prohibits Evidence 403 the admission of case, “the important most data would be if there is danger pro data regarding the individual department.” bative value will be substantially out Dugan, 815 F.2d at 1137. weighed by prejudice. unfair See Robin son, 514-15; 149 F.3d at United States v. While was Kovacevich permitted to

Bonds, (6th Cir.1993). present department-based her data on prejudice “Unfair does not mean the dam wages jury, to the the study that the court age to a defendant’s case that results from did not allow was based on the entire legitimate the probative force evi population of university the faculty, includ- dence; rather it refers to evidence which ing all departments and seven KSU’s re- tends to suggest a decision an improper on gional campuses. J.A. at in 742.12 As the Robinson, (cita basis.” 149 F.3d at 515 cases however, cited supra, the distribu- omitted). tion tion of merit awards is by determined each separate college university the as a Excluding this study was not an —not whole. Thus, J.A. 747. at study’s abuse of the discretion. In disparate treat descriptions wage ment of differentials for the challenges university wage and entire decisions, university tenure bear little opera- the disapprove courts on of studies tion of the system and other merit the College that describe within Education, trends of an of and university opposed system entire as how that may particular the department question. specifically in have impacted on Kovacevich’s See, e.g., v. wage Evans Cleveland State Univ. over time. Accordingly, the court’s Trustees, Bd. 90-3759, No. 1991 WL decision to exclude that evidence was not of (6th Cir.1991) 93094 at *5 (unpublished an abuse Likewise, of discretion. it was study less, 12. question The in was undertaken and promoted are later and at a lower part Kovacevich as of her work with the Com- rate similarly than faculty situated mem- male (“Commit- mittee on and Women Minorities bers.” J.A. It at attributed the dis- W") tee chapter of the KSU of the AAUP.J.A. crimination to two causes: "discriminatory at study The 1487-1518. looked salaries market and factors” "institutional discrimina- KSU, promotions and concluding across that tion that promotion.” to bias leads Id. facuhy "female paid members at are [KSU] claims Title VII claim and the EPA the to exclude of discretion not an abuse discrimination, REMAND and wage by the United issued order show-cause with not inconsistent Labor, proceedings of Office of Department States court’s AFFIRM was We opinion. Compliance, which Contract Federal remaining to the respect with study. judgment university-wide on based claim, as the ADEA and claims VII Title G. university- excluding the its orders well as from data, Kovacevich precluding wide dis- that the argues Finally, Kovacevich claim, her denying and adding a retaliation KSU’s disqualified have should trict counsel. disqualify KSU’s motion to argues case. She trying this from counsel Cunningham Richard counsel trial that attorney by the appointed concurring GILMAN, counsel

(special Judge, Circuit member long-time had been judgment. in the general) concurring and part during trustees, including KSU’s board of the court in the I concur were question events time when I reasoning, though much of its and 1995, he served From unfolding. as least jury could believe of the KSU of directors board on lag found Kovacevich’s easily have resigned Foundation, he from which apparently her result of pay ging Ko- case. University in this represent research towards attitude cavalier district court argues now vacevich subpar admittedly publication, motion to dis- her granting erred than work, rather of her documentation as trustee role Cunningham’s since qualify, But gender. on the basis discrimination im- an appearance years gave in those the burden University has State Kent likely conflict and showed propriety could jury reasonable no showing that interest. favor based in Kovacevich’s have found reviewing a district When agree I with presented, the evidence deci part findings factual do so. failed to it has court that clearly apply a we disqualify, not to judges sion reviewing more one or fact Corp. Dana standard. erroneous different weighed the evidence have might Ohio, Shield Mut. & jury’s Blue Cross Blue to overturn no basis ly provides of N. Cir.1990). We 882, 889 Net v. Nashville See Williams verdict. that there court (6th with agree Cir. work, 1130-31 In addi here. for disqualification no Ramsey, case County 1997); Scott v. pri by Cir.1999). offered to the reasons (8th tion I write KSU— 916-17 F.3d that was no there marily, that however, question I because separately, any in involved was v. Cunningham EEOC in the decision the soundness acts, that Cun (6th discriminatory alleged F.3d 858 Corp., 104 Avery Dennison at as a witness appear did not that ningham defense of Cir.1997), and the court’s who only party that appears trial —it opinion. by conceivably harmed have been could itself. See was KSU conflict potential I. v. ITT Continental Melamed generally Corp., Avery Cir. Dennison Co., F.2d EEOC In

Banking Willis, the (6th Cir.1997), to Ronald attempt no 1979). makes Kovacevich F.3d discrimina- race of interest settled a party, conflict alleged charging how the explain Corpora- Avery Dennison against suit her. tion harmed employer. tion, then Willis’s which was IV. cash to a settle- agreed Avery Dennison Willis provide and to of the claim the ment reasons, we REVERSE these For exchange, reference. a letter to with respect with judgment agreed resign Willis his position at findings of fact key point was the that the Avery Dennison and look for work else- EEOC had failed by to establish a prepon- where. After Willis for anoth- interviewed derance of the evidence that the adverse job, er prospective his employer contacted employment causally action was related to Avery Dennison, seeking information Willis’s engaging in protected activities. about employment. Willis’s Avery The Accordingly, district court concluded Dennison employee who responded to the that the had proved EEOC its case request for reported information that Wil- preponderance evidence, en- lis had frequently work, been absent from tered in of Avery favor Denni- and had left “because an arbitration son. The EEOC appealed. and Willis case that awarded him a cash settlement A panel reversed, divided of this court on the condition he terminate his em- with Judge Ryan dissenting. majori- ployment” Avery with Dennison. Id. at ty concluded the district court’s denial 859. Not surprisingly, Willis not get did of the EEOC’s and Willis’s motions for job. summary judgment meant that the district Willis then filed charge with the Equal genuine “believed issues existed Employment Opportunity Commission, with respect to prima case,” id. facie claiming that the employment bad refer- at including whether or not Willis’s ence inwas retaliation for his participation job bad reference was causally related to protected activities, i.e., protesting alleg- his engaging protected activities. Ac- edly discriminatory company policies and cording to majority, “[t]he fact that the violations, Title filing claims, VII EEOC [district] court was faced with prima and prosecuting Title VII lawsuits. The case question at the summary judg- facie EEOC complaint filed a in the United ment stage and then allowed go the case to States District Court for the Northern trial, could be construed as a tacit ac- behalf, District of Ohio on Willis’s alleging knowledgment of [the EEOC’s] fa- retaliation violation of Title VII. Willis cie case.” Id. at 861. What the district permitted was to intervene. done, court should have the majority con-

The EEOC and cluded, Willis filed motions for appropriate “draw[] reason- summary judgment. (Although major- able inferences and rule[] on whether or ity opinion Avery Dennison describes not a prima made, case had been facie “cross-motions,” motions as Avery reserving for trial only the ultimate issue Dennison, ap- in fact of discrimination.” Id. at 860-61. pears Avery Dennison had not cross- Reasoning that a “finding that [the] moved for summary judgment and that the plaintiff proven only motions for summary judgments be- forces the defendant proceed with fore the district court were the ones filed case,” id. majority went Willis.) the EEOC and The district hold that “[i]t necessarily follows, then, motions, court denied that, the concluding that the defendant is not judg- entitled to based summary on the judgment record, a ment as a matter of or judg- law summary

reasonable factfinder would not be com- ment if a plaintiff proven its pelled to conclude job that the bad refer- case” because preliminary “[t]his is a facie ence causally was related to engag- Willis’s matter which cannot be revisited at a later ing protected activities. time.” Id. (Putting at 861. aside all other Because no requested had party jury a moment, issues for appears it trial, the district court then conducted a majority overlooked the fact that a district trial, bench after it findings which issued entry court’s of judgment following a of fact and of law required conclusions as bench trial is not “judgment aas of matter by Rule 52 of the Federal Rules of Civil law summary judgment.”). on Based Procedure. Among the district court’s analysis, the above this court reversed 1965) of mo (observing that the denial a for entry judgment of court’s district “merely post summary judgment for the case to tion Dennison, and remanded Avery it any question; decides pones on decision “a determination court for district any other it give and that “[t]o Id. none” of discrimination.” issue the ultimate contrary to the entirely be effect would at 863. summary judgment proce of the purpose remand, court re-entered On nothing more than The court did dure. Dennison, this time Avery for judgment do, is, grant to to refuse purported prove had to EEOC failed finding that the motion”); v. Dictograph Prods. Co. non-dis legitimate, Avery Dennison’s (2d 134-35 Corp., 230 Sonotone was for its conduct criminatory explanation J.) (“No Cir.1956) (L.Hand, sug one will judg This affirmed court pretextual. change may not judge] gest [trial that the unpub in a court short of the district ment own order.... mind and overrule his his Avery v. Den EEOC opinion. lished statute, “law phrase, ‘In the absence 98-3490, 1999 WL No Corp., nison case,” to the applied as effect of the (6th Nov.15,1999). Cir. merely expresses ... previous orders to to refuse generally courts practice II. decided, limit not a has been reopen what Avery Denni- with problem principal A ”) v. Messinger (quoting power.’ on their court, that the district suggestion is its son Anderson, 225 U.S. trial, “tac- go to to allowing the case J.)). (1912) (Holmes, L.Ed. acknowledged ... Plaintiffs’ it[ly] their discretion may in Dennison, District courts F.3d at Avery case.” for motions or successive permit renewed plaintiffs’ by denying the Actually, particularly when summary judgment, only summary judgment, for motions expanded factual that, party has moving decided district court thing the is summary judgment which summary judgment record basis of the on the See, Boglino, e.g., sought. record, would trier fact a reasonable Whitford Cir.1995) (“[T]he denial Specif- F.3d their favor. compelled find be judicata has no res summary judgment that a concluded district court ically, the may, effect, and the district com- not be of fact would trier reasonable previ- discretion, renew party allow job refer- bad to find that Willis’s pelled motion or summary judgment ously denied engaging causally related his ence was motions, good if particularly file successive not the That activities. protected exist.”). denial of motion If the trier reasons concluding that reasonable same as entitled to were summary judgment job reference for find that could of fact effect, presum- courts preclusive engaging in causally to Willis’s related ^uas to entertain not be would allowed ably Avery Denni- (Again, activities. protected summary judgment or successive judg- renewed summary not moved son had motions. ment.) ac- addition, fails to Avery Dennison Avery Dennison with problem

Another sum- between a the difference knowledge that a district assumption is its trial record. record mary entitled judgment is summary denial are decid- summary judgment law Motions effect, “the if it becomes preclusive of a ‘paper’ the basis “exclusively on See, e.g., Perez- ed It not. case.” does ” Co., Lilly (1st Eli & v. 40, Shields record.... 25 F.3d Crespo-Guillen, v. Ruiz (D.C.Cir.1990). Depo- 1463, 1466 895 F.2d Cir.1994) interlocutory orders (noting that are used transcripts and affidavits sition case” and of the “the law become do not testimony the live-witness stand-ins for reconsidera open trial “remain trial The at trial. presented that would be Trust Am. tion”); Bank Nat’l Dessar v. hand, record, princi- consists other on the 468, Ass’n, Cir. & Sav. pally testimony of the witness for which “surprising parties find the and the deposition the transcripts and affidavits Appeals Court of addressing still ques the surrogates were (assuming that parties the tion plaintiff whether [the] made out agreed have not stipulated to a trial on prima facie case.” Id. at 103 S.Ct. facts). 1478. Because the case had been tried on merits, the the Supreme Court concluded party A might always introduce at “by framing terms,” the in issue these trial all of put the evidence it into the parties the and the Court Appeals had summary judgment record —whether “unnecessarily evaded the ques ultimate tactical purposes, lack of witness availabili- tion of all, discrimination vel non.” After ty, Or, or other reasons. rather than pre- reasoned, the Court if “the defendant has evidence, senting too little it might present everything done that would be required of much, too and wreck in pro- its case plaintiff him if the had properly out made If cess. evidence the trial record is prima case, facie plaintiff whether the not the same as the evidence in the sum- really did so is no longer relevant.” Id. at record, mary judgment it would make little 715, 103 S.Ct. 1478. say sense to that a district court’s decision deny summary judgment it forecloses But what if dispute there is a about granting from judgment as a matter of law whether the defendant every- “has done on the same issue jury after a trial. thing that would required be him if plaintiff properly had made out a But even if the contents of the trial facie case?” Even if the district court has appear record to match up with the con- summary denied to the defen- tents of the summary judgment record, dant, plaintiff still prove has to his case live witness testimony “plays” differently See, e.g., trial. Mary’s St. Honor Ctr. than deposition affidavits and fragments. Hicks, 502, 511, 113 S.Ct. Fry, DeCarlo v. 61 n. 1 (1993) (“The 125 L.Ed.2d 407 (2d Cir.1998) (“The factfinder’s fact that [the district disbelief of the put reasons forward prior court] held genuine to trial that is- defendant (particularly if disbelief is ac- sues of precluded material fact summary companied by suspicion mendacity) judgment as to liability [the defendant’s] may, together with the elements does not necessarily mean that a verdict as case, suffice to show intention- a matter of law after the trial would be al Thus, rejection discrimination. way unwarranted. The plays proffered defendant’s permit reasons will may out at trial sufficiently alter the con- the trier of fact to infer the ultimate fact of tours of liability issue such that a discrimination.”) intentional (emphasis jury reasonable only could reach one con- added). clusion.”). Sometimes it simply easier to determine what inferences can reason- trial, At plaintiff persuade must still ably be drawn once one actually heard the trier of fact that a “preponderance of the testimony question, rather than to the evidence establishes the pri- facts of a make the determination paper pre- from a ma 509-10, facie case.” Id. at view of testimony. 2742. If the trier of fact persuaded, is not the plaintiff loses—even if the defendant

III. has completely failed to come forward with Avery rationale of Dennison is root support evidence in any legitimate non- Supreme ed Court’s observation discriminatory explanation for its actions. United States Postal Service Board See id. at 509-10 & n. 113 S.Ct. 2742. Aikens, Governors v. Indeed, 460 U.S. apparently this is only way (1983), S.Ct. that, L.Ed.2d 403 plaintiff if can lose the defendant has failed following final judgment for the defendant to sustain its burden of producing evidence in a Title trial, VII case after a bench permit that would a finding illegal

837 in favor judgment and for crimination” the real reason not was discrimination the court opinion The Avery Dennison. persuaded plaintiff has If the its action. fact, case, accepts in that present in the constituting a facts of the the factfinder of the upon elements bears “evidence that has case, the defendant facie prima in play can come into facie case also prima of production, its burden not sustained of discrimi- question ultimate assessing the required. is plaintiff for the nation,” castigates as it at even Op. College, 114 v. Vassar Fisher id. But cf. in “refo- its error court for the district Cir.1997) (en banc) (2d 1332, 1389 F.3d a of whether question cus[ing] on the why (Winter, J., dissenting) (explaining case” prima her facie plaintiff established thing as a there is no such reality ... “[i]n “looking] to the ultimate than rather denied, defendant”), 522 U.S. cert. silent Op. at 824. of discrimination.” question L.Ed.2d S.Ct. (1998). a me more appears to This distinction If, of substance. than matter of semantics district held that the Avery Dennison trial, a presented the evidence based on only been have concerned court should find that the jury could not reasonable of discrimination.” ultimate issue with “the were facie case constituting prima a facts Dennison, 862. But F.3d at Avery evi- preponderance a proved retaliation a Title VII in plaintiff the when dence, will be entitled the defendant then judge at a the persuade to failed case has Contrary of law. judgment as a matter to adverse the defendant’s trial bench not Aikens does opinion, the court’s to plaintiffs to the causally related action was otherwise,” Op. at us “instruct[] activities, can there in protected engaging not stand for certainly “does Aikens “the rational conclusion only one be flatly court is that a district proposition discrimination,” i.e., that issue of ultimate adequacy considering the prohibited from his proven simply has plaintiff as a after the case case prima facie not that is problem The plaintiffs case. trial, when even proceeded whole has to to showing make a sufficient failed to he the district never asked has the defendant trial; failed to is that he problem his get to Avery question.” to court consider when a Similarly, at trial. case prove his J., Dennison, (Ryan, dis- F.3d at 865 treatment disparate in a Title plaintiff VII senting). factfinder, for persuade to case fails rather sure, Aikens are parts of To be similarly situated that he is example, Nevertheless, agree with cannot favorably, I cryptic. more who were treated others case present statement judgment. the court’s entitled to the defendant appellate number impressive that “an produce evi- fails plaintiff And if holding in applied [Aikens’s] factfin- courts have any reasonable dence sufficient did.” Avery Dennison similarly way situ- the same he was der to conclude that fact, any am, not aware of more I Op. at 823. were treated others who ated to Ai- applied court that appellate other is entitled favorably, the defendant Avery way quite the same kens of law. judgment as matter Dennison did. Dennison, the district Avery Browner, 181 Barbour example, For impre- perhaps of nomenclature use (D.C.Cir.1999), cited plaintiff hold that the Rather than cise. case, n. Op. see case, present court failed establish ato that was tried VII was Title have held court should plaintiff, found for jury. jury court that persuaded the had not EEOC the defendant’s denied facie case constituting the facts law. a matter of matter, judgment as motion practical As a proved. had been Columbia Circuit the District of appeal, On finding against required have this would reversed, on the basis concluding that of dis- ultimate on “the issue the EEOC trial, presented the evidence a reason- The Second Circuit in Coffey expressly jury able not have could concluded that the stated that it examining was “the ultimate plaintiff similarly was per- question situated to the non,” of discrimination vel id. at relatively son whose favorable treatment and there can be little doubt that a plaintiff claimed was circumstantial ev- plaintiff who has introduced no evidence Barbour, idence of discrimination. See 181 that she differently was treated than oth- F.3d at 1345. ers engage who did not in protected activi- ties will prove be unable to to a reasonable Barbour duly noted that because the jury that she was the victim of retaliation. fully tried, case had been question “the See, e.g., Morris v. Oldham County Fiscal whether plaintiff] [the prima established a Court, Cir.2000) (cit- facie case is irrelevant.” Id. at 1347 (noting that a causal connection between Aikens). ing But then Barbour concluded protected activity and the adverse em- “[tjhis mean, however, does not ployment action or harassment is an ele- analysis our question ‘the ultimate prima ment aof facie case for Title VII non,’ discrimination vel we are obliged to retaliation). But if one were inclined to pretend that there is supporting take issue with the end result in Coffey, a prima facie case when in fact there is just easily one could say that what the (citation omitted). not.” Id. I believe that Second Circuit did was revisit the prima the District of Columbia Circuit’s reason- (i.e., facie case plaintiff whether pre- ing was According correct. Avery Den- sented sufficient evidence that the adverse nison and opinion today, this court employment action causally was related to however, Barbour prima revisited the activities) her engaging protected after (or case after trial and thus did exactly the case already had worthy been deemed exactly) almost what Aikens supposedly of submission jury. to a forbids. The outcome of utilizing cases Similarly, in Coffey v. Dobbs Interna Douglas-Burdine McDonnell burden- Services, Inc., (2d tional 170 F.3d 323 shifting formula should not turn on wheth- Cir.1999), court, also cited see Op. er the district court concludes after trial at 824 n. the Second Circuit overturned plaintiff failed to establish a jury plaintiff verdict for the on a Title (technically facie case wrong inquiry), claim, VII retaliation concluding that the plaintiff concludes that failed to district judge erred granting produce sufficient evidence permit employer’s post-verdict motion for judg reasonable trier of fact to find in his favor ment as a matter of law. Coffey, on the “ultimate issue of discrimination”— F.3d at Coffey 327. cites Aikens for the produced because he insufficient evidence proposition that “[b]ecause this case has support one of the constituting facts fully merits, been tried on the we need not prima facie (technically the correct determine plaintiff] whether [the estab inquiry). Because the difference is essen- lished a facie case.” See id. at 326. semantics, tially one of it is difficult to Coffey Then concludes that because the why Avery understand Dennison reversed plaintiff failed to present any evidence sug court, of the district rather gesting that she was treated differently affirming than grounds different after than other individuals who were -not re correcting the district court’s terminology. Dobbs, tained when employer, sold its Albany, New York operations to a new In view of the finding factual company, and because she had never re district court in Avery Dennison that the quested that Dobbs transfer her to one of employer’s actions were not causally relat- locations, its other “no jury reasonable ed to participation Willis’s in protected could find that Dobbs’s failure activities, to transfer way any there was no’ rea- plaintiff] [the retaliatory.” Id. at sonable trier of fact to find in the EEOC’s nondiscriminatory explanation legitimate of discrimina- ultimate issue on “the favor See, e.g., Reeves v. Sanderson pretextual. unless, course, the district tion”— —Inc., -, Prods., Plumbing U.S. relationship was clear- finding of no causal -, 2097, 2108-09, 147 120 S.Ct. had been finding If that ly erroneous. (2000) (reasoning that L.Ed.2d 105 because erroneous, judgment for the then clearly likely the most “discrimination well be may required. been might logically have EEOC once the explanation” trier alternative that not conclude Avery Dennison did But legit employer’s the persuaded fact is that no causal finding of district court’s the nondiscriminatory explanation imate In- clearly erroneous. relationship was case, false, com prima facie plaintiffs “a error stead, legal find a purported it to to evidence find that bined with sufficient reversal, the and then sent required that justification is court, employer’s the asserted judg- where the district back to false, to the trier of fact con may permit Avery Dennison re-entered was ment discriminated”); unlawfully employer clude that the and then grounds) on other (supposedly Corp. v. Constr. Wa co this court. panel of by another affirmed Furn ters, S.Ct. U.S. (“[Wjhen (1978) legitimate IV. all L.Ed.2d 957 rejecting applicant an have reasons Avery Denni- reason Perhaps the that for the possible reasons been eliminated as limit the district attempts to son actions, likely it is more than employer’s once facie case revisiting the from ... employer based his deci not that the it over- trial is because goes matter to the consideration.”). impermissible sion on is then re- plaintiff the estimates what sug Recently, the the Court has Supreme to win on prove quired to order which, may that there be cases Avery gested Dennison majority The merits. plaintiff has established “although has made out the plaintiff once the that wrote set forth sufficient facie face and case and the defendant prima facie explana reject defendant’s legitimate nondis- the of a evidence produced evidence tion, actions, could conclude that no rational finder criminatory reason for Reeves, discriminatory.” was the addi- the action required to overcome “plaintiff is — at-, (partial at 2109 rebuttal U.S. of the defendant’s tional obstacle A, 128 F.3d TV ly disapproving the exis- Kline convincingly demonstrate (6th Cir.1997)). only can assume discrimination,” But one and that “St. tence rather be unusual. additional bur- that such cases will places v. Hicks Mary’s however, Center, (St. was Mary’s Honor they prove that must on Plaintiffs den cases; evidently reason was a one of those that defendant’s only case, court, of fact in that disbe reason was dis- the trier pretext, but the real Dennison, proffered explana 104 F.3d Avery lieved defendants’ crimination.” “a there was crusade and found that tion at 861-62. but declined plaintiff, to terminate” misreading to me to be seems This racially motivat was infer that the crusade sure, the To be Mary’s Honor Center. St. Ctr., 509 at Mary’s U.S. ed. St. Honor case, in order to Title plaintiff in a VII 2742). 508, 113S.Ct. succeed, trier of fact persuade the must most rea- But let us be the defendant’s realistic. real reason for draw, jurors once inference for But in the or- sonable actions was discrimination. proffered the defendant’s course, they reason- disbelieve may trier of fact dinary actions, ordinarily will explanation for its reason for the infer real ably defendant acted real be that the reason illegal discrimina- actions was defendant’s discrimination. See it persuaded illegal as did being virtue simply tion — at-, Sanderson, (1) facie plaintiffs prima of the facts of Fisher, 2108-09; also (2) see proffered S.Ct. case, that the defendant’s (Newman, C.J., dissenting) way, appears Avery Either Den- I (“Though agree finding ... that ‘a unnecessary nison has caused confusion pretext, together circuit, with comprising within the by Judge evidenced case, always a prima Ryan’s is not sufficient in Avery dissent Dennison itself finding sustain an ultimate of intentional opinions of the district court discrimination,’ it will be rare case where below in both this and other cases. I thus so.”) (citation omitted). this is not join court, but disagree with Avery its defense of Denni- short, appellate I believe that if an son, which, my opinion, only perpetuates persuaded plaintiff court is that the in a the confusion. produced Title VII case sufficient evidence jury at trial for a to have reasonable found favor, plaintiffs and that as a conse-

quence the post-trial grant district court’s judgment as a matter of law for the erroneous, defendant was appellate WILLIAMS, Plaintiff-Appellant, Ella simply say court should so. When that happens, the district court’s error is that it MANUFACTURING, TOYOTA MOTOR improperly substituted its KENTUCKY, INC., Defendant- jury, that of the not that the district court Appellee. somehow contradicted now-binding implied findings supposedly that it simply by made No. 99-5234.

letting go the case to trial. United States Court of Appeals,

Sixth Circuit.

V. Argued Feb. 2000. If Avery prohibition against Dennison’s Aug. Decided and Filed 2000. revisiting facie case is taken Rehearing Rehearing En Banc literally, meaning that the district court Denied Oct. 2000. question proof cannot constituting the Rehearing Denied Oct. plaintiffs prima facie case once the action trial, proceed allowed to then the decision is erroneous for all of the reasons

set forth above. I also believe that this interpretation

literal place would Awn/

Dennison in conflict prior with this court’s Co., decision v. General Electric Gafford (6th Cir.1993),

997 F.2d 150 for the rea-

sons well-stated both the dissent

Avery Dennison and the district court If, hand,

below. on the other the thrust of

Avery only Dennison is intended to re-

quire the district court to focus on the

ultimate issue of discrimination once all

the proof is in—a focus that includes con-

sideration plaintiff of whether the pro-

duced sufficient support evidence to all of

the elements that constitute a prima facie Avery

case—then Dennison is simply

trap unwary judges who wrong terminology.

use the

Case Details

Case Name: Dorothy Kovacevich v. Kent State University

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 25, 2000

Citation: 224 F.3d 806

Docket Number: 98-3678

Court Abbreviation: 6th Cir.