dissenting.
{¶ 37} Aside from the court of appeals’ decision in this case, every state and federal court that has addressed the present certified question, including the United States Supreme Court, has held that once a discrimination case is tried on the merits, it is error for an appellate court, in reviewing the propriety of any dispositive defense motion that was denied at trial, to revisit the issue of whether or how the plaintiff succeeded initially in establishing a prima facie case of discrimination under McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Thus, an appellate court may not overturn a jury verdict favorable to the plaintiff solely on the basis that the plaintiff failed to establish a McDonnell Douglas prima facie case of discrimination. Instead, the reviewing court must consider the sufficiency of the evidence as it bears on the ultimate question of discrimination vel non, that is, it must determine whether enough evidence was produced to allow the trier of fact to infer that the employment decision at issue was based on an illegal discriminatory criterion. See St. Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 510-511, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407; Bazemore v. Friday (1986), 478 U.S. 385, 398, 106 S.Ct. 3000, 92 L.Ed.2d 315; United States Postal Serv. Bd. of Governors v. Aikens (1983), 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403; Sanchez v. Puerto Rico Oil Co. (C.A.1, 1994), 37 F.3d 712, 720; Coffey v. Dobbs Internatl. Serv., Inc. (C.A.2, 1999), 170 F.3d 323, 326; Hopp v. Pittsburgh (C.A.3, 1999), 194 F.3d 434, 439; Anastasio v. Schering Corp. (C.A.3, 1988), 838 F.2d 701, 705, fn. 9; Gibson v. Old Town Trolley Tours (C.A.4, 1998), 160 F.3d 177, 180; DeJarnette v. Corning, Inc. (C.A.4, 1998), 133 F.3d 293, 297; Jiminez v. Mary Washington College (C.A.4, 1995), 57 F.3d 369, 377; Barnes v. Yellow Freight Sys., Inc. (C.A.5, 1985), 778 F.2d 1096, 1100; Fuhr v. School Dist. of Hazel Park (C.A.6, 2004), 364 F.3d 753, 757; Kovacevich v. Kent State Univ. (C.A.6, 2000), 224 F.3d 806, 821-822, 827; *213Brocklehurst v. PPG Industries, Inc. (C.A.6, 1997), 123 F.3d 890, 897, fn. 5; Equal Emp. Opportunity Comm. v. Avery Dennison Corp. (C.A.6, 1997), 104 F.3d 858, 862; Diettrich v. Northwest Airlines, Inc. (C.A.7, 1999), 168 F.3d 961, 964; Starks v. George Court Co., Inc. (C.A.7, 1991), 937 F.2d 311, 315; Cardenas v. AT & T Corp. (C.A.8, 2001), 245 F.3d 994, 998; Polacco v. Curators of Univ. of Missouri (C.A.8, 1994), 37 F.3d 366, 369-370; Bouman v. Block (C.A.9, 1991), 940 F.2d 1211, 1223; Casillas v. United States Navy (C.A.9, 1984), 735 F.2d 338, 343; Anaeme v. Diagnostek, Inc. (C.A.10, 1999), 164 F.3d 1275, 1279; Tidwell v. Carter Prod. (C.A.11, 1998), 135 F.3d 1422, 1426; Richardson v. Leeds Police Dept. (C.A.11, 1995), 71 F.3d 801, 806; Cleveland v. Home Shopping Network, Inc. (C.A.11, 2004), 369 F.3d 1189, 1194; Dunaway v. Internatl. Bhd. of Teamsters (C.A.D.C.2002), 310 F.3d 758, 762; Hayman v. Natl. Academy of Sciences (C.A.D.C.1994), 23 F.3d 535, 537; Huntley v. State (Ala.1992), 627 So.2d 1013, 1015; Heard v. Lockheed Missiles & Space Co. (1996), 44 Cal.App.4th 1735, 1753-1756, 52 Cal.Rptr.2d 620; Caldwell v. Paramount Unified School Dist. (1995), 41 Cal.App.4th 189, 203-205, 48 Cal.Rptr.2d 448; Landals v. George A. Rolfes Co. (Iowa 1990), 454 N.W.2d 891, 893; King v. Iowa Civ. Rights Comm. (Iowa 1983), 334 N.W.2d 598, 603; State Comm. on Human Relations v. Kaydon Ring & Seal, Inc. (2003), 149 Md.App. 666, 696-698, 818 A.2d 259; Baker v. Natl. State Bank (1998), 312 N.J.Super. 268, 288-289, 711 A.2d 917; Bovee v. New Mexico Hwy. & Transp. Dept. (2002), 133 N.M. 519, 523-524, 65 P.3d 254; Pelletier v. Rumpke Container Serv. (2001), 142 Ohio App.3d 54, 60, 753 N.E.2d 958; Yelton v. Stehlin (Aug. 20, 1999), 1st Dist. No. C-980503, 1999 WL 631002; Toole v. Cook (May 6, 1999), 10th Dist. No. 98AP-486, 1999 WL 280804; Xieng v. Peoples Natl. Bank of Washington (1993), 120 Wash.2d 512, 522-523, 844 P.2d 389; Barefoot v. Sundale Nursing Home (1995), 193 W.Va. 475, 483-484, 457 S.E.2d 152.
{¶ 38} Holding singularly to the contrary, the majority finds it appropriate to depart from federal precedent on this issue because “[ujnlike federal practice, Ohio practice permits an appellate court to reexamine the sufficiency of just the plaintiffs evidence in determining whether the trial court erred in denying a defendant’s motion for a directed verdict at the close of plaintiffs case even though the case has been tried to conclusion. Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464.” But Helmick does not provide the necessary justification for deviating from federal precedent, which we usually follow in discrimination cases, since the federal decisions prohibiting posttrial review of the prima facie case of discrimination are not based on the rule of practice that Helmick serves to distinguish.
{¶39} As noted above, the federal courts are unanimous in their refusal to conduct a posttrial review of the prima facie case in considering a challenge to the trial court’s denial of a dispositive defense motion. Moreover, the previously cited federal cases collectively involve appeals from the gamut of unsuccessful *214trial motions, including motions for judgment as a matter of law that were made by the defendant and denied at the close of plaintiffs case and again at the close of all the evidence. Yet none of those decisions even mention, let alone rely upon, the rule of federal practice that requires a defendant to elect between preserving its challenge to the sufficiency of plaintiffs initial evidence or submitting evidence in defense of the claim. Thus, while Helmick may well serve to support the majority’s claimed distinction between Ohio and federal practice, the distinction itself is irrelevant.
{¶ 40} Nevertheless, the majority concludes that permitting an appellate court to revisit plaintiffs evidence in support of the prima facie case of discrimination in the renewed-directed-verdict context is consistent with the principle reflected in Helmick that “a plaintiff must prove essential elements of his or her case before progressing beyond his or her case-in-chief.” Of course, this assumes that the discrete elements of the McDonnell Douglas prima facie case are “essential elements” of a discrimination claim, which is a false assumption.
{¶ 41} The McDonnell Douglas prima facie case is neither coextensive with the plaintiffs case-in-chief nor the exclusive means by which the plaintiff is permitted to raise an inference of discrimination. It is merely the first stage of a three-part analytic framework that overlies but does not necessarily regulate or correspond to the actual events of a trial. The paradigm created in McDonnell Douglas “ ‘is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’ ” Aikens, supra, 460 U.S. at 715, 103 S.Ct. 1478, 75 L.Ed.2d 403, quoting Furnco Constr. Corp. v. Waters (1978), 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957. It “helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case [are] intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207, fn. 8.
{¶ 42} While the McDonnell Douglas model may tend to influence the order and allocation of proof in a discrimination case, there is no requirement that a trial actually proceed in accordance with that pattern. “No formal trifurcation of trial is required under McDonnell Douglas because it provides ‘merely a sensible, orderly way to evaluate the evidence * * *.’ ” Casillas, supra, 735 F.2d at 343, quoting Aikens, supra, 460 U.S. at 715, 103 S.Ct. 1478, 75 L.Ed.2d 403. Indeed, “ ‘as a practical matter,’ the ‘real-life sequence of a trial’ does not necessarily comport with [the McDonnell Douglas ] model.” Cline v. Catholic Diocese of Toledo (C.A.6, 2000), 206 F.3d 651, 659, fn. 6, quoting St. Mary’s Honor Ctr., supra, 509 U.S. at 510, 113 S.Ct. 2742, 125 L.Ed.2d 407, fn. 3.
*215{¶ 43} The prima facie case under McDonnell Douglas consists of elements that are designed to raise a rebuttable presumption of discrimination by eliminating the most common nondiscriminatory reasons for an employment action. See Burdine, supra, 450 U.S. at 253-254, 101 S.Ct. 1089, 67 L.Ed.2d 207; Internatl. Bhd. of Teamsters v. United States (1977), 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396; Hollins v. Atlantic Co. (C.A.6, 1999), 188 F.3d 652, 659; Mauzy v. Kelly Serv., Inc. (1996), 75 Ohio St.3d 578, 583, 664 N.E.2d 1272. Discrimination is inferred from the satisfaction of these elements because once the usual legitimate reasons are eliminated, the most likely alternative explanation for the employer’s decision is discrimination. See Waters, supra, 438 U.S. at 577, 98 S.Ct. 2943, 57 L.Ed.2d 957.
{¶ 44} Of course, any Title VII or R.C. Chapter 4112 plaintiff bears the initial burden of establishing a “prima facie case” in the sense that he or she must produce enough evidence to allow the jury to infer the ultimate fact of discrimination. But there is no requirement that a plaintiff use or rely upon the presumption of discrimination that arises from the establishment of a McDonnell Douglas prima facie case in order to carry that burden.
{¶ 45} “[T]he McDonnell Douglas pattern [is not] the only means of establishing a prima facie case of individual discrimination. * * * The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” (Emphasis sic.) Internatl. Bhd. of Teamsters, supra, 431 U.S. at 358, 97 S.Ct. 1843, 52 L.Ed.2d 396.
{¶ 46} The McDonnell Douglas prima facie case is simply one form of circumstantial evidence that is probative of intentional discrimination. See, e:g., Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 505, 575 N.E.2d 439, quoting Barnes v. GenCorp., Inc. (C.A.6, 1990), 896 F.2d 1457, 1464 (McDonnell Douglas specifies “ ‘the elements a plaintiff must prove to establish a prima facie case of discrimination absent direct, circumstantial, or statistical evidence of discrimination’ ”). It is designed to facilitate the inquiry into intentional discrimination, not to unduly restrict the circumstances from which discrimination may be inferred. Thus, as one court aptly observed, for a reviewing court “to wander afield in pursuit of [a defendant’s] phantom ‘prima facie case’ argument is a bit like undertaking early morning calisthenics: it might be good exercise, but it certainly is not essential to the business of the day.” Sanchez, supra, 37 F.3d at 720.
{¶ 47} In the final analysis, however, the majority is not simply permitting an appellate court to reexamine the sufficiency of plaintiffs initial evidence as it bears on the prima facie case of discrimination. Here the majority is permitting *216an appellate court to use the prima facie case as a means to nullify a jury’s determination of discrimination based solely on a review of some of plaintiffs initial evidence. The court of appeals in this case conflated the distinct stages of the McDonnell Douglas inquiry by forcing appellant to demonstrate pretext at the initial prima facie stage and then unfairly restricted the evidence that may be presented on that issue. As a result, the court overturned a jury verdict in appellant’s favor based solely on a finding that a portion of the evidence presented in plaintiffs case-in-chief is insufficient to support the verdict.
{¶ 48} The court of appeals found that “in order to establish a prima facie case of discrimination, [appellant] must show that he was treated differently than similarly situated employees from outside the class.” The court of appeals then reviewed certain evidence that several white employees had been treated differently from appellant, who is black, under allegedly similar circumstances. The court of appeals essentially concluded that the white officers were not similarly situated and thus were not appropriate “comparables,” because, unlike Williams, they did not commit acts of domestic violence that resulted in serious physical injury to the victim. This required characteristic for a similarly situated employee is, in fact, the primary nondiscriminatory explanation given by appellee for treating appellant differently from the white officers. Thus, appellee’s chief of police testified that “the biggest issue with Gerald, Mr. Williams is that he caused serious physical harm; and none of the other officers that we have discussed to this point have done that * *
{¶ 49} Under the McDonnell Douglas framework, the plaintiff is not required to make this kind of showing at the prima facie stage. Evidence that similarly situated non-class-members were treated differently from plaintiff does not enter the inquiry until its third and final stage, when the plaintiff is given an opportunity to demonstrate that the employer’s stated reason for its employment decision is merely a pretext for discrimination. Thus, as the Supreme Court explained in McDonnell Douglas:
{¶ 50} “On remand, respondent [employee] must * * * be afforded a fair opportunity to show that petitioners’ stated reason for respondent’s rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the ‘stall-in’ [by respondent] were nevertheless retained or rehired.” (Emphasis added.) Id., 411 U.S. at 804, 93 S.Ct. 1817, 36 L.Ed.2d 668.
{¶ 51} Moreover, by considering as similarly situated only those employees with an attribute that mirrors appellee’s legitimate, nondiscriminatory explanation for discharging appellant, the court of appeals “inappropriately short-circuited the McDonnell Douglas framework at the prima facie stage and frustrated the plaintiffs ability to establish that the defendant’s proffered reasons *217were pretextual.” Bullington v. United Air Lines, Inc. (C.A.10, 1999), 186 F.3d 1301, 1316, fn. 11.
{¶ 52} As explained more fully in Kenworthy v. Conoco, Inc. (C.A.10, 1992), 979 F.2d 1462:
{¶ 53} “[RJuling that the plaintiffs did not establish a prima facie case based on the reasons for their discharge ‘raise[d] serious problems under the McDonnell Douglas analysis, which mandates a full and fair opportunity for a plaintiff to demonstrate pretext. Short-circuiting the analysis at the prima facie stage frustrates a plaintiffs ability to establish that the defendant’s proffered reasons were pretextual * * *; if a plaintiffs failure to overcome the reasons offered by the defendant for discharge defeats the plaintiffs prima facie case, the court is then not required to consider plaintiffs evidence on these critical issues.’ ” Id. at 1470, quoting MacDonald v. E. Wyoming Mental Health Ctr. (C.A.10, 1991), 941 F.2d 1115, 1119. See, also, Cline, supra, 206 F.3d at 660 (this kind of analysis “conflate[s] the distinct stages of the McDonnell Douglas inquiry by using [defendant’s] ‘nondiscriminatory reason’ as a predicate for finding [plaintiff] to have failed to make a prima facie case * * * [and] improperly import[s] the later stages of the * * * inquiry into the initial prima facie stage”); Heard, supra, 44 Cal.App.4th at 1754, 52 Cal.Rptr.2d 620 (the employer’s “interpretation of the similarly situated attribute [to comport'with its explanation for firing plaintiff] effectively eliminate[s] [its] obligation to produce a legitimate nondiscriminatory reason for its employment decision”); Yarbrough v. Tower Oldsmobile, Inc. (C.A.7, 1986), 789 F.2d 508, 512 (reason for discharge given by employer “is not * * * appropriately brought as a challenge to the sufficiency of [plaintiffs] prima facie case”).
{¶ 54} In reality, therefore, the court of appeals required appellant to prove the ultimate fact of discrimination as part of his prima facie case, but refused to consider the totality of the evidence as it bore on that fact. For example, the court of appeals ignored evidence that appellee had treated appellant disparately in the past, that appellee generally meted out harsher discipline to black officers than to white officers for equivalent offenses, and that appellee’s stated reasons for discharging appellant were either contrived or unworthy of credence. Yet each of these items is exactly the kind of evidence that suffices to raise an inference of discrimination. See, e.g., Reeves v. Sanderson Plumbing Prod., Inc. (2000), 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105; McDonnell Douglas, 411 U.S. at 804-805, 93 S.Ct. 1817, 36 L.Ed.2d 668; Young v. Warner-Jenkinson Co., Inc. (C.A.8, 1998), 152 F.3d 1018, 1022, 1024; Nelson v. Boatmen’s Bancshares, Inc. (C.A.8, 1994), 26 F.3d 796, 801; Kaydon Ring & Seal, Inc., supra, 149 Md.App. at 701-702, 818 A.2d 259.
*218{¶ 55} What is most ironic, all of these evidentiary items were presented during the appellant’s case-in-chief. Therefore, the rule of Helmick allowing appellate review of the denial of a motion for directed verdict at the close of plaintiffs case-in-chief is simply irrelevant.
{¶ 56} The majority’s criticism of this dissent is itself testimony to the majority’s confusion. The certified issue in this case is whether the court of appeals may properly return to consider the prima facie case of discrimination, not whether it can return to consider the evidence presented during the plaintiffs case-in-chief. The holding in Helmick goes only so far as to allow an appellate court to revisit the plaintiffs case-in-chief, which does not answer the certified issue. Assuming that Helmick correctly states the law, the question remains whether an appellate court may limit its review of the evidence presented during plaintiffs case-in-chief to how it bears on the McDonnell Douglas prima facie case. If the court of appeals actually considered the entire record as it stood at the close of plaintiffs evidence, there would have been no need for the court of appeals to certify the present issue.
{¶ 57} The majority’s confusion is evident from the fact that it ascribes inconsistent meanings to the term “prima facie case.” Sometimes in its opinion the majority uses the term as synonymous with the plaintiffs case-in-chief and sometimes to indicate the four-element McDonnell Douglas test as modified by the court of appeals. The result is a faulty syllogism in which the majority concludes that since Helmick allows the court of appeals to revisit the plaintiffs case-in-chief it must also allow the court of appeals to limit its review to the McDonnell Douglas prima facie case of discrimination. And on top of this, the majority readily admits that it is allowing a jury verdict to be overturned without ever considering whether there was sufficient evidence to sustain it.
{¶ 58} I respectfully dissent.
Pfeifer, J., concurs in the foregoing opinion.