Clifford Litton v. Talawanda School District

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Alice M. Batchelder, Chief Circuit Judge, separate dissenting opinion; Eugene E. Siler , Jr., Circuit Judge, separate concurring opinion and R. Guy Cole , Jr., Authoring Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0677n.06
No. 10-3559
FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLIFFORD LITTON,
Plaintiff-Appellee,
v.
TALAWANDA SCHOOL DISTRICT,
Defendant-Appellant.

BEFORE:

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Jun 26, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
OPINION

BATCHELDER, Chief Judge; SILER and COLE, Circuit Judges.

COLE, Circuit Judge. Plaintiff-Appellee Clifford Litton, an African-American custodian
working for Defendant-Appellant Talawanda School District (“Talawanda”), sued Talawanda for
race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000, et seq., among other claims. The jury returned a special verdict finding that Litton had not
suffered an adverse employment action, but that race had been a motivating factor behind
Tawalanda’s actions, and awarded Litton damages. The district court entered judgment for Litton,
reasoning that precedent prevented the court from revisiting the prima facie case after a full trial on
the merits. Talawanda appeals, arguing that Litton’s failure to make out his prima facie case is
dispositive, requiring the district court to grant judgment as a matter of law in its favor. We disagree
and AFFIRM.

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I. BACKGROUND
Sixteen years into Litton’s tenure as head custodian at Talawanda High School (“THS”), the
Talawanda School District (“Talawanda”) restructured its custodial division. As part of this
restructuring, it stripped Litton of his title as head custodian and transferred him to Talawanda
Middle School (“TMS”), telling Litton, the only African-American employee in the facilities
department, that he no longer “fit in” at the high school. Litton v. Talawanda School Dist., No. C-107-027, 2010 WL 1257576, at *5 (S.D. Ohio March 31, 2010). Seeking to return to THS, Litton
applied for an open groundskeeper position at the high school. Despite being the most senior
applicant, his request was denied. Next, Litton requested to transfer into an open custodial position
at THS. Although he was again the most senior applicant, Litton’s request was denied.
Litton brought suit against Talawanda, alleging race discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq., and
Ohio law; age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq., and Ohio law; and breach of Ohio public policy. Litton, 2010 WL 1257576, at *1.
The district court granted summary judgment in favor of Talawanda on several claims. The parties
thereupon proceeded to trial on (1) the age discrimination claim, for the denial of the groundskeeper
position, and (2) the race discrimination claim, for the transfer to TMS and denial of Litton’s request
to transfer back to his previous position at THS.
At the close of Litton’s case-in-chief, Talawanda moved for judgment as a matter of law,
arguing that Litton had not proved its prima facie case. The court did not rule on the motion, but
took it “under advisement,” and the trial continued. At the end of the trial, the jury returned a special
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verdict, answering specific questions about whether Litton’s age motivated the denial of the
groundskeeper position, whether the transfer to TMS and denial of a return to THS constituted
adverse employment actions, and whether race was a motivating factor in Talawanda’s decision to
transfer Litton to TMS or to deny his request to transfer back to THS. The special verdict form
instructed the jury to calculate damages if it found that age or race was a motivating factor in the
relevant employment actions. The jury found that Litton’s transfer to TMS and inability to transfer
back to THS did not constitute adverse employment actions, but that race was a motivating factor
in both these decisions. The jury awarded Litton $50,000 in compensatory damages, but no back or
front pay. It did not find age discrimination.
Upon receiving the verdict, each party moved for judgment in its favor. Talawanda moved
for judgment as a matter of law, arguing that the jury’s finding that Litton had failed to prove an
element of his prima facie case required it to find no unlawful discrimination. Litton moved for an
entry of judgment in his favor because the jury had found unlawful discrimination and awarded
damages to him. Following briefing, the district court entered judgment for Litton. See Litton v.
Talawanda Sch. Dist., No. C-1-07-027, 2010 WL 1257576 (S.D. Ohio, Mar. 31, 2010). Talawanda
appeals.
II. ANALYSIS
A. Standard of review
The grant or denial of a motion for judgment as a matter of law is reviewed de novo. White
v. Burlington N. & Santa Fe R. Co., 364 F.3d 789, 794 (6th Cir. 2004) (en banc). The court reviews
the entire record “in the light most favorable to the nonmoving party.” Id. The court should affirm
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the jury verdict unless there is “no legally sufficient evidentiary basis for a reasonable jury to find
for [the prevailing] party.” Id. (quoting Fed. R. Civ. P. 50(a)).
B. Title VII and Prima Facie Matters
Title VII of the Civil Rights Act of 1964 prohibits employers from “fail[ing] or refus[ing]
to hire or to discharge any individual, or otherwise [] discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2 (2010). “The
ultimate question in every employment discrimination case involving a claim of disparate treatment
is whether the plaintiff was the victim of intentional discrimination.” Tisdale v. Federal Express
Corp., 415 F.3d 516, 529 (6th Cir. 2005) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 153 (2000)). A plaintiff may succeed in his Title VII claim “by persuading the court that
a discriminatory reason more likely motivated the employer . . . .” Id. (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 517 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)).
In disparate treatment cases lacking direct evidence of discrimination, we apply the burdenshifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Risch v. Royal
Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009). The first step of the framework requires the
plaintiff to establish a prima facie case. For Title VII, the plaintiff must prove by a preponderance
of the evidence that: “(1) he was a member of a protected class; (2) that he suffered an adverse
employment action; (3) that he was qualified for the position; and (4) that a person outside the
protected class was treated more favorably than him.” Braithwaite v. Timken Co., 258 F.3d 488, 493
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(6th Cir. 2001). Once the plaintiff has established his prima facie case, the burden shifts to the
defendant to show “some legitimate non-discriminatory reason” for the disputed action. Id. (quoting
Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1329 (6th Cir. 1994)). Finally, the burden shifts
back to the plaintiff to prove that the defendant’s explanation is “a pretext for discrimination.” Id.
(citing Burdine, 450 U.S. at 255).
The Supreme Court has clarified that the prima facie rubric does not create mandatory
elements for Title VII claims, but rather provides a “sensible, orderly way to evaluate the evidence
in light of common experience as it bears on the critical question of discrimination.” Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). Indeed, it has cautioned courts against
“applying legal rules which were devised to govern ‘the basic allocation of burdens and order of
presentation of proof,’ in deciding this ultimate question.” Hicks, 509 U.S. at 524 (quoting Aikens,
460 U.S. at 716) (internal citations omitted). Pursuant to this schema:
when the defendant fails to persuade the district court to dismiss the action for lack
of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the
reason for the plaintiff’s rejection, the fact finder must then decide whether the
rejection was discriminatory within the meaning of Title VII.
Aikens, 460 U.S. at 714-15 (footnote omitted). Stated differently, the prima facie inquiry “is a
preliminary matter which cannot be revisited at a later time.” EEOC v. Avery Dennison Corp., 104
F.3d 858, 861 (6th Cir. 1997). Therefore, once “the case proceed[s] to trial . . . we are no longer
concerned with whether the plaintiff established a prima facie case, but instead focus on the actual
question of discrimination.” Fuhr v. Sch. Dist. of City of Hazel Park, 364 F.3d 753, 757 (6th Cir.
2004).

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This principle is well settled in this circuit. See, e.g., Madden v. Chattanooga City Wide Serv.
Dep’t, 549 F.3d 666, 674 (6th Cir. 2008) (courts may not review the sufficiency of a prima facie case
after a merits trial); Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 546 (6th Cir. 2008) (same);
Tisdale, 415 F.3d at 529 (same); Fuhr, 364 F.3d at 757; Moore v. Freeman, 355 F.3d 558, 562 (6th
Cir. 2004) (same); Kovacevich v. Kent State Univ., 224 F.3d 806, 822 (6th Cir. 2000) (same); Suggs
v. ServiceMaster Educ. Food Mgmt., 72 F.3d 1228, 1232 (6th Cir. 1996) (same). See also Cline v.
Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000) (district court may not dismiss
plaintiff’s action for failure to meet the first McDonnell Douglas prong based on the evidence
defendant advances regarding the second McDonnell Douglas prong).
Indeed, it is followed by every circuit in the country. See, e.g., Brady v. Office of Sergeant
at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988
(9th Cir. 2007) (“[W]hether Bates established a prima facie case of employment discrimination in
the summary judgment ‘burden-shifting’ sense is moot after trial. The relevant inquiry now is simply
whether the evidence presented at trial supports a finding of liability.”); Riser v. Target Corp., 458
F.3d 817, 820-21 (8th Cir. 2006) (“[W]e need not indulge the parties’ disputes about which material
facts are in dispute or whether Riser met his burden in establishing a prima facie case under
McDonnell Douglas regardless of the ‘threshold’ we have set for such proof.”); Whittington v.
Nordam Grp., Inc., 429 F.3d 986, 993 (10th Cir. 2005) (“We have repeatedly stated that juries are
not to apply the McDonnell Douglas framework and that we are not concerned with plaintiff’s proof
of a prima facie case when we review a jury verdict.”); accord Collado v. United Parcel Serv., Co.,
419 F.3d 1143, 1151 (11th Cir. 2005); Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir.
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2003); Nawrot v. CPC Int’l, 277 F.3d 896, 906 (7th Cir. 2002); Coffey v. Dobbs Int’l Services, Inc.,
170 F.3d 323, 326 (2d Cir. 1999); Hopp v. City of Pittsburgh, 194 F.3d 434, 439 (3d Cir. 1999);
Gibson v. Old Town Trolley Tours of Wash., D.C., Inc., 160 F.3d 177, 181 (4th Cir. 1998); Sanchez
v. Puerto Rico Oil Co., 37 F.3d 712, 720 (1st Cir. 1994).
Thus, precedent compels us to disregard the jury’s assessment of Litton’s prima facie case
and instead focus on “the ultimate question of discrimination vel non.” See Aikens, 460 U.S. at 714.
Talawanda would have us reject this precedent based on the technicality that the district court
did not deny outright Talawanda’s motion for judgment as a matter of law, but rather allowed the
case to proceed and “delegated” the issue to the jury to resolve at the close of evidence. In making
this argument, it relies on Gafford v. General Electric Co., in which a district court likewise
instructed the jury to rule on the sufficiency of the plaintiff’s prima facie case at the close of
evidence, and this Court affirmed the district court’s judgment in favor of the defendant. 997 F.2d
150 (6th Cir. 1993), abrogated on other grounds by Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010).
Talawanda maintains that because the jury ruled in Talawanda’s favor on the adverse employment
action question, it was precluded from finding for Litton on the question of discrimination.
Talawanda’s argument fails. Most importantly, Gafford differs from this case, because the
Gafford jury also found for the defendant on the ultimate question. The Gafford court resolved only
whether the district court committed reversible error by asking the jury to resolve questions regarding
the plaintiff’s prima facie case. The case at bar carries a contradiction that Gafford lacked: the jury
found for Talawanda on one question and for Litton on the other. Gafford does not instruct us on
how to resolve such a conflict.
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Aikens does resolve this very question and does so in Litton’s favor. In Aikens, the parties
underwent a full bench trial. At the close of evidence, the district court issued a verdict that
“erroneously focused on the question of prima facie case rather than directly on the question of
discrimination.” 460 U.S. at 717. After expressing “surpris[e]” that the parties continued to dispute
a threshold question after the trial had ended, id. at 714, the Supreme Court remanded the case to the
district court to “decide on the basis of the evidence before it whether the Postal Service
discriminated against Aikens.” Id. at 717. We adopted the Aikens principle in full in Avery
Dennison. In Avery Dennison, the district court likewise ruled, after a full trial on the merits, that
the plaintiff should lose because he had failed to establish an element of his prima facie case. 104
F.3d at 860. We relied on Aikens to reverse the district court’s ruling and remand it “for a
determination on the ultimate issue of discrimination.” Id. at 863.
When Talawanda lost its summary judgment motion before trial and did not prevail in its
motion for judgment as a matter of law at the close of Litton’s case-in-chief, it “fail[ed] to persuade
the district court to dismiss the action for lack of a prima facie case.” See Aikens, 460 U.S. at 714.
That the district court did not deny the latter motion outright does not strengthen Talawanda’s claim.
Aikens does not condition its rule on the district court’s express denial of a motion for judgment as
a matter of law, but rather on (1) its failure to grant such a motion and (2) the defendant proceeding
to “respond[] to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection.”
Id. at 714-15. Cf. Tisdale, 415 F.3d at 529 (declining to visit sufficiency of prima facie case where
defendant did not move for judgment as a matter of law during trial); Avery Dennison, 104 F.3d 858,
860-61 (district court’s denial of plaintiff’s summary judgment motion prior to trial constituted
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acknowledgment that plaintiff had met his prima facie burden). Thus, the jury’s assessment of
Litton’s prima facie case did not control its finding on the ultimate question of discrimination.
In any event, we have already addressed the potential conflicts between Gafford, Aikens, and
Avery Dennison, interpreting Gafford to preclude the argument that Talawanda raises.

In

Kovacevich, we explained that:
While, as Gafford states, the elements of the prima facie case can indeed go before
a jury, Aikens and Avery Dennison simply state that in reviewing a trial that proceeds
beyond the prima facie stage, neither the district court nor appellate court should
refocus on the question of whether a plaintiff established her prima facie case. . . .
[I]n reviewing the facts of a discrimination claim after there has been a full trial on
the merits, a district court or an appellate court must focus on the ultimate question
of discrimination rather than on whether a plaintiff made out her prima facie case.
224 F.3d 806, 824-25 (6th Cir. 2000). Thus, the district court was not only permitted to disregard
the jury’s answer to the adverse employment action question, it was required to do so, and instead
to evaluate the strength of the evidence as a whole.
Talawanda confined its argument on appeal to whether the district court erred by failing to
defer to the jury’s determination of the adverse employment action question. It did not otherwise
challenge the sufficiency of the evidence supporting the jury’s finding on the ultimate question of
discrimination. Having rejected Talawanda’s argument, we see no need to address the sufficiency
of the evidence supporting the jury’s verdict.
III. CONCLUSION
We AFFIRM.

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ALICE M. BATCHELDER, Chief Judge, dissenting. This case turns on a simple
question: Does a Title VII plaintiff have to prove that he was discriminated against, or merely that
he faced any discrimination, including discrimination that was not harmful to him? This simple
question has a clear answer, one that is dictated by Title VII’s text, case law, and logic.
Unfortunately, that is not the answer that the majority adopts. Thus, I respectfully dissent from the
majority’s extraordinary holding that not only is Litton relieved of his burden to prove that he
suffered adverse discrimination, he is entitled to have the district court set aside a jury verdict finding
that he failed to meet that burden.
I.
Talawanda transferred Litton from his job as a custodian at the Talawanda High School to
a custodian position at the Talawanda Middle School that had the same pay, work hours, and
responsibilities. But because Litton felt that working at the Middle School was less prestigious and
took him from relationships that he had enjoyed at the High School, he deemed the transfer a
demotion and sought to be transferred back. After Talawanda refused, Litton brought this Title VII
action.
Litton’s claim survived a motion for summary judgment and came to trial. There, the jury
was charged with determining whether Litton had proved by a preponderance of the evidence that
either the initial transfer to the Middle School or the later refusal to return Litton to the High School
was a material adverse employment action. The jury found that Litton failed on both counts, a
finding it confirmed on Litton’s request for polling. Based on this finding, Talawanda moved for
judgment in its favor. The district court ultimately rejected the motion, holding that whether Litton
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had suffered a material adverse employment action was relevant only to Litton’s prima facie case
and that the sole issue at trial was “whether defendant discriminated against plaintiff because of his
race.” The majority adopts that conclusion, holding that the “ultimate issue of discrimination” in
a Title VII case does not include proof that the discrimination was adverse but instead merely turns
on whether discrimination occurred at all.
II.
As an initial matter, the majority is wrong that precedent such as EEOC v. Avery Dennison
Corp., 104 F.3d 858, 861 (6th Cir. 1997), “compels us to disregard the jury’s assessment” that Litton
had failed to prove that he suffered adverse discrimination simply because that assessment concerned
“Litton’s prima facie case.” Maj. Op. at 7. Although the jury’s finding was relevant to the prima
facie case, it was also—as shown below—integral to the ultimate issue before the jury. This Circuit
has repeatedly recognized that courts may “consider[] evidence that . . . bears on th[e] prima facie
case as long as it does so in order to address the ultimate question of discrimination.” Kovacevich
v. Kent State Univ., 224 F.3d 806, 825 (6th Cir. 2000); accord Imwalle v. Reliance Med. Prods., Inc.,
515 F.3d 531, 546 (6th Cir. 2008). Thus, it is incorrect to “disregard” a finding that bears on the
ultimate issue simply because it is also relevant to the prima facie case.
The core problem with the majority’s holding is that it treats the question of whether Litton
suffered adverse discrimination as distinct from “the ultimate question of discrimination vel non.”
The two are one. Title VII states, “It shall be unlawful employment practice for an employer . . . to
fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because
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of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2 (emphasis
added). In other words, Title VII does not ban mere discrimination, but only adverse discrimination.
Thus, the Supreme Court has explained that the “ultimate question” in Title VII cases is not just
whether discrimination occurred at all, but “whether the plaintiff has proven that the defendant
intentionally discriminated against [him.]” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993) (emphasis added; internal citation and quotation marks omitted); see also id. at 523-24 (“Title
VII [only] award[s] damages . . . against employers who are proven to have taken adverse
employment action by reason of (in the context of the present case) race.” (emphasis added)). It is,
to me, beyond obvious that Title VII applies only where there has been discrimination against an
individual. That requirement is not merely some vestigial prima facie element that fades into the
background as the case progresses—it is at the heart of the claim itself.
This Court directly held as much in Fuhr v. School District of City of Hazel Park, 364 F.3d
753, 757 (6th Cir. 2004). There, as here, we confronted the question of whether proof that the
plaintiff suffered adverse employment action is part of the “ultimate question of discrimination.”
Id. We concluded that it was, holding that “th[e ultimate] question includes a determination of
whether there was evidence from which the jury could have concluded that the action of which Fuhr
complains was adverse to her.” Id. at 757-58 (emphasis added); see id. at 757 (“The ultimate
question of discrimination in this case is whether [the school] ‘failed or refused to hire or otherwise
discriminated against Fuhr with respect to her compensation, terms, conditions, or privileges of
employment, because of Fuhr’s sex.’” (quoting Title VII) (internal editing omitted)). Because Fuhr
had proved that she “suffer[ed] an adverse employment action,” we found that she had answered the
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“actual question of discrimination” in her favor. Id. at 757-58. Fuhr’s analysis is directly applicable
to this case, and its holding essentially forecloses the majority’s.
None of the cases that the majority cites to support its conclusion are to the contrary. Not
one states that the “ultimate question of discrimination” disregards whether the discrimination was,
in fact, adverse. At best, they are silent on the issue.1 More often, they directly contradict the
majority’s holding by explicitly requiring that discrimination be adverse in their formulation of the
ultimate question.2 For instance, far from sanctioning the majority’s course, the Supreme Court’s
decision in U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983), makes clear that
answering the “ultimate question” necessarily includes proof of adverse discrimination: “The factual
inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff.
In other words, is the employer . . . treating some people less favorably than others because of their

1

See, e.g., Moore v. Freeman, 355 F.3d 558, 562 (6th Cir. 2004); Cline v. Catholic Diocese of Toledo, 206 F.3d
651, 661 (6th Cir. 2000); Riser v. Target Corp., 458 F.3d 817, 820-21 (8th Cir. 2006).
2

See, e.g., Fuhr, 364 F.3d at 757; Suggs v. ServiceMaster Educ. Food Mgmt., 72 F.3d 1228, 1232 (6th Cir.
1996) (recognizing that the “ultimate question” is “whether the plaintiff carried her burden of proof of discriminatory
discharge.” (emphasis added)); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (holding that
the “one central question” at a Title VII trial is whether “the employee produced sufficient evidence for a reasonable jury
to find that . . . the employer intentionally discriminated against the employee on the basis of race, color, religion, sex,
or national origin[.]” (emphasis added)); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007) (finding
that, in a disability discrimination case, “an employee bears the ultimate burden of proving that he [wa]s . . .
discriminated against ‘because of’ [his] disability[.]” (emphasis added)); Collado v. United Parcel Serv., Co., 419 F.3d
1143, 1150-51 (11th Cir. 2005) (recognizing that Aiken’s “ultimate question of discrimination vel non” formulation
required asking “whether the defendant intentionally discriminated against the plaintiff.” (emphasis added)); Palasota
v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir. 2003) (holding in an age discrimination case that, even though a
plaintiff need not revisit his prima facie case after a trial on the merits, he still must show that he “has met his ultimate
burden of proving that the employer terminated him because of age.” (emphasis added)); Coffey v. Dobbs In’l Servs.,
Inc., 170 F.3d 323, 326 (2nd Cir. 1999) (finding that “the ultimate question of discrimination vel non” requires the
plaintiff to introduce “sufficient evidence to support a finding that [the defendant] intentionally discriminated against
her[.]” (emphasis added; internal citation, quotation marks, and edits omitted)).

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race, color, religion, sex, or national origin.” (emphasis added; citations and internal quotation
marks omitted).
The majority’s holding also contradicts Title VII’s internal logic. Litton asserts, and the
majority agrees, that because whether there was any negative action is not actually a part of a claim
of “discrimination,” to be successful he need only show that his employer made a decision based on
his race. See Litton Br. at 16–17; Maj. Op. at 7. But under this reasoning, an employee could sue
for a neutral or even positive employment action. That is nonsensical. No employee could be told,
“We are promoting you because of your race,” respond with “Thank you very much,” and then
promptly sue because the employer based its decision on his race. Although co-employees of
another race who were not promoted might well have a case, see, e.g., Ricci v. DeStefano, 557 U.S.
557 (2009), the beneficiary of the discrimination would not.
In sum, “the ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Noble v. Brinker Int’l,
Inc., 391 F.3d 715 (6th Cir. 2004) (quoting Hicks, 509 U.S. at 518) (emphasis added). Though
Litton produced enough evidence regarding adverse treatment to get his prima facie case past
summary judgment—which required only that he show that the evidence was not “so one-sided that
[Talawanda] must prevail as a matter of law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
(1986)—he failed to meet his burden to prove the “ultimate question,” namely, that he was
discriminated against. It might be that a transfer from a prestigious job to a less prestigious one can
constitute a material adverse employment action. But Litton failed to prove as much here and the
jury found that he had failed. The majority should not relieve Litton of his burden, and it certainly
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Litton v. Talawanda School District
should not grant him victory in the face of a jury verdict finding that he never proved that he suffered
adverse discrimination at all. The whole purpose of Title VII, as stated clearly by its text and
controlling case law, is preventing harmful discrimination, not the lamentable-but-benign
discrimination that the jury found Litton experienced.
I respectfully dissent.

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Case: 10-3559

Document: 006111349093

Filed: 06/26/2012

Page: 16

No. 10-3559
Litton v. Talawanda School District
SILER, Judge, concurring. The dissent sets out a very reasonable result to this case.
However, I concur with the majority because I feel that the decision in EEOC v. Avery Dennison
Corp., 104 F.3d 858, 861 (6th Cir. 1997), precludes this court from considering the result proposed
by the dissent. I do not mean to say that a plaintiff in a Title VII case does not have the burden of
showing that he suffered adverse discrimination. He does, but the peculiar facts of this case come
under the umbrella of the Avery Dennison case. It is an anomaly that this is allowed, but that is my
interpretation of the decision in Avery Dennison.

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