concurring in part and concurring in the judgment.
I concur in the judgment of the court and in much of its reasoning, though I believe that the jury could at least as easily have found that Kovacevich’s lagging pay was the result of her apparently cavalier attitude towards research and publication, and the admittedly subpar documentation of her work, rather than discrimination on the basis of gender. But Kent State University has the burden of showing that no reasonable jury could have found in Kovacevich’s favor based on the evidence presented, and I agree with the court that it has failed to do so. The fact that one or more reviewing judges might have weighed the evidence differently provides no basis to overturn the jury’s verdict. See Williams v. Nashville Network, 132 F.3d 1123, 1130-31 (6th Cir.1997); Scott v. County of Ramsey, 180 F.3d 913, 916-17 (8th Cir.1999). I write separately, however, because I question the soundness of the decision in EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir.1997), and the court’s defense of that opinion.
I.
In EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir.1997), Ronald Willis, the charging party, settled a race discrimination suit against Avery Dennison Corporation, which was then Willis’s employer. Avery Dennison agreed to a cash settlement of the claim and to provide Willis with a letter of reference. In exchange, *834Willis agreed to resign his position at Avery Dennison and look for work elsewhere. After Willis interviewed for another job, his prospective employer contacted Avery Dennison, seeking information about Willis’s employment. The Avery Dennison employee who responded to the request for information reported that Willis had been frequently absent from work, and had left “because of an arbitration case that awarded him a cash settlement on the condition that he terminate his employment” with Avery Dennison. Id. at 859. Not surprisingly, Willis did not get the job.
Willis then filed a charge with the Equal Employment Opportunity Commission, claiming that the bad employment reference was in retaliation for his participation in protected activities, i.e., protesting allegedly discriminatory company policies and Title VII violations, filing EEOC claims, and prosecuting Title VII lawsuits. The EEOC filed a complaint in the United States District Court for the Northern District of Ohio on Willis’s behalf, alleging retaliation in violation of Title VII. Willis was permitted to intervene.
The EEOC and Willis filed motions for summary judgment. (Although the majority opinion in Avery Dennison describes the motions as “cross-motions,” Avery Dennison, 104 F.3d at 860, it in fact appears that Avery Dennison had not cross-moved for summary judgment and that the only motions for summary judgments before the district court were the ones filed by the EEOC and Willis.) The district court denied the motions, concluding that, based on the summary judgment record, a reasonable factfinder would not be compelled to conclude that the bad job reference was causally related to Willis’s engaging in protected activities.
Because no party had requested a jury trial, the district court then conducted a bench trial, after which it issued findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. Among the district court’s findings of fact was the key point that the EEOC had failed to establish by a preponderance of the evidence that the adverse employment action was causally related to Willis’s engaging in protected activities. Accordingly, the district court concluded that the EEOC had not proved its case by a preponderance of the evidence, and entered judgment in favor of Avery Denni-son. The EEOC and Willis appealed.
A divided panel of this court reversed, with Judge Ryan dissenting. The majority concluded that the district court’s denial of the EEOC’s and Willis’s motions for summary judgment meant that the district court “believed that genuine issues existed with respect to the prima facie case,” id. at 860, including whether or not Willis’s bad job reference was causally related to his engaging in protected activities. According to the majority, “[t]he fact that the [district] court was faced with the prima facie case question at the summary judgment stage and then allowed the case to go to trial, could be construed as a tacit acknowledgment of [the EEOC’s] prima fa-cie case.” Id. at 861. What the district court should have done, the majority concluded, was “draw[] appropriate reasonable inferences and rule[] on whether or not a prima facie case had been made, reserving for trial only the ultimate issue of discrimination.” Id. at 860-61.
Reasoning that a “finding that [the] plaintiff has proven a prima facie case forces the defendant to proceed with its case,” id. at 861, the majority went on to hold that “[i]t necessarily follows, then, that the defendant is not entitled to judgment as a matter of law or summary judgment if a plaintiff has proven its prima facie case” because “[t]his is a preliminary matter which cannot be revisited at a later time.” Id. at 861. (Putting aside all other issues for the moment, it appears that the majority overlooked the fact that a district court’s entry of judgment following a bench trial is not “judgment as a matter of law or summary judgment.”). Based on the above analysis, this court reversed the *835district court’s entry of judgment for Avery Dennison, and remanded the case to the district court for “a determination on the ultimate issue of discrimination.” Id. at 863.
On remand, the district court re-entered judgment for Avery Dennison, this time finding that the EEOC had failed to prove that Avery Dennison’s legitimate, non-discriminatory explanation for its conduct was pretextual. This court affirmed the judgment of the district court in a short unpublished opinion. See EEOC v. Avery Dennison Corp., No 98-3490, 1999 WL 1073676 (6th Cir. Nov.15,1999).
II.
A principal problem with Avery Denni-son is its suggestion that the district court, by allowing the case to go to trial, “tacit[ly] acknowledged ... Plaintiffs’ prima facie case.” Avery Dennison, 104 F.3d at 861. Actually, by denying the plaintiffs’ motions for summary judgment, the only thing the district court decided was that, on the basis of the summary judgment record, a reasonable trier of fact would not be compelled to find in their favor. Specifically, the district court concluded that a reasonable trier of fact would not be compelled to find that Willis’s bad job reference was causally related to his engaging in protected activities. That is not the same as concluding that a reasonable trier of fact could find that the job reference ^uas causally related to Willis’s engaging in protected activities. (Again, Avery Denni-son had not moved for summary judgment.)
Another problem with Avery Dennison is its assumption that a district court’s denial of summary judgment is entitled to preclusive effect, as if it becomes “the law of the case.” It does not. See, e.g., Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994) (noting that interlocutory orders do not become “the law of the case” and “remain open to trial court reconsideration”); Dessar v. Bank of Am. Nat’l Trust & Sav. Ass’n, 353 F.2d 468, 470 (9th Cir.1965) (observing that the denial of a motion for summary judgment “merely postpones decision of any question; it decides none” and that “[t]o give it any other effect would be entirely contrary to the purpose of the summary judgment procedure. The court did nothing more than it purported to do, that is, refuse to grant the motion”); Dictograph Prods. Co. v. Sonotone Corp., 230 F.2d 131, 134-35 (2d Cir.1956) (L.Hand, J.) (“No one will suggest that the [trial judge] may not change his mind and overrule his own order.... ‘In the absence of statute, the phrase, “law of the case,” as applied to the effect of previous orders ... merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power.’ ”) (quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912) (Holmes, J.)).
District courts may in their discretion permit renewed or successive motions for summary judgment, particularly when the moving party has expanded the factual record on which summary judgment is sought. See, e.g., Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir.1995) (“[T]he denial of summary judgment has no res judicata effect, and the district court may, in its discretion, allow a party to renew a previously denied summary judgment motion or file successive motions, particularly if good reasons exist.”). If the denial of a motion for summary judgment were entitled to preclusive effect, district courts presumably would not be allowed to entertain renewed or successive summary judgment motions.
In addition, Avery Dennison fails to acknowledge the difference between a summary judgment record and a trial record. Motions for summary judgment are decided “exclusively on the basis of a ‘paper’ record.... ” Shields v. Eli Lilly & Co., 895 F.2d 1463, 1466 (D.C.Cir.1990). Deposition transcripts and affidavits are used as stand-ins for the live-witness testimony that would be presented at trial. The trial record, on the other hand, consists princi*836pally of the witness testimony for which the deposition transcripts and affidavits were surrogates (assuming that the parties have not agreed to a trial on stipulated facts).
A party might not always introduce at trial all of the evidence it put into the summary judgment record — whether for tactical purposes, lack of witness availability, or other reasons. Or, rather than presenting too little evidence, it might present too much, and wreck its case in the process. If the evidence in the trial record is not the same as the evidence in the summary judgment record, it would make little sense to say that a district court’s decision to deny summary judgment forecloses it from granting judgment as a matter of law on the same issue after a jury trial.
But even if the contents of the trial record appear to match up with the contents of the summary judgment record, live witness testimony “plays” differently than affidavits and deposition fragments. See DeCarlo v. Fry, 141 F.3d 56, 61 n. 1 (2d Cir.1998) (“The fact that [the district court] held prior to trial that genuine issues of material fact precluded summary judgment as to [the defendant’s] liability does not necessarily mean that a verdict as a matter of law after the trial would be unwarranted. The way the evidence plays out at trial may sufficiently alter the contours of the liability issue such that a reasonable jury could reach only one conclusion.”). Sometimes it is simply easier to determine what inferences can reasonably be drawn once one has actually heard the testimony in question, rather than to make the determination from a paper preview of that testimony.
III.
The rationale of Avery Dennison is rooted in the Supreme Court’s observation in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), that, following final judgment for the defendant in a Title VII case after a bench trial, it was “surprising to find the parties and the Court of Appeals still addressing the question whether [the] plaintiff made out a prima facie case.” Id. at 714, 103 S.Ct. 1478. Because the case had been tried on the merits, the Supreme Court concluded that “by framing the issue in these terms,” the parties and the Court of Appeals had “unnecessarily evaded the ultimate question of discrimination vel non.” After all, the Court reasoned, if “the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Id. at 715, 103 S.Ct. 1478.
But what if there is a dispute about whether the defendant “has done everything that would be required of him if the plaintiff had properly made out a prima facie case?” Even if the district court has denied summary judgment to the defendant, the plaintiff still has to prove his case at trial. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.”) (emphasis added).
At trial, the plaintiff must still persuade the trier of fact that a “preponderance of the evidence establishes the facts of a pri-ma facie case.” Id. at 509-10, 113 S.Ct. 2742. If the trier of fact is not persuaded, the plaintiff loses — even if the defendant has completely failed to come forward with evidence in support of any legitimate nondiscriminatory explanation for its actions. See id. at 509-10 & n. 3, 113 S.Ct. 2742. Indeed, this is apparently the only way the plaintiff can lose if the defendant has failed to sustain its burden of producing evidence that would permit a finding that illegal *837discrimination was not the real reason for its action. If the plaintiff has persuaded the factfinder of the facts constituting a prima facie case, and the defendant has not sustained its burden of production, judgment for the plaintiff is required. See id. But cf. Fisher v. Vassar College, 114 F.3d 1332, 1389 (2d Cir.1997) (en banc) (Winter, J., dissenting) (explaining why “[i]n reality ... there is no such thing as a silent defendant”), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998).
Avery Dennison held that the district court should have been concerned only with “the ultimate issue of discrimination.” Avery Dennison, 104 F.3d at 862. But when the plaintiff in a Title VII retaliation case has failed to persuade the judge at a bench trial that the defendant’s adverse action was causally related to the plaintiffs engaging in protected activities, there can be only one rational conclusion on “the ultimate issue of discrimination,” i.e., that the plaintiff has simply not proven his case. The plaintiffs problem is not that he failed to make a showing sufficient to get to trial; his problem is that he failed to prove his case at trial. Similarly, when a plaintiff in a Title VII disparate treatment case fails to persuade the factfinder, for example, that he is similarly situated to others who were treated more favorably, the defendant is entitled to judgment. And if the plaintiff fails to produce evidence sufficient for any reasonable factfin-der to conclude that he was similarly situated to others who were treated more favorably, the defendant is entitled to judgment as a matter of law.
In Avery Dennison, the district court’s use of nomenclature was perhaps imprecise. Rather than hold that the plaintiff failed to establish a prima facie case, the district court should have held that the EEOC had not persuaded the court that the facts constituting a prima facie case had been proved. As a practical matter, this would have required a finding against the EEOC on “the ultimate issue of discrimination” and judgment in favor of Avery Dennison. The opinion of the court in the present case, in fact, accepts that “evidence that bears upon elements of the prima facie case can also come into play in assessing the ultimate question of discrimination,” Op. at 827, even as it castigates the district court for its error in “refocus[ing] on the question of whether a plaintiff established her prima facie case” rather than “looking] to the ultimate question of discrimination.” Op. at 824.
This distinction appears to me more a matter of semantics than of substance. If, based on the evidence presented at trial, a reasonable jury could not find that the facts constituting a prima facie case were proved by a preponderance of the evidence, then the defendant will be entitled to judgment as a matter of law. Contrary to the court’s opinion, Aikens does not “instruct[] us otherwise,” Op. at 825, and Aikens certainly “does not stand for the proposition that a district court is flatly prohibited from considering the adequacy of the prima facie case after the case as a whole has proceeded to trial, even when the defendant has never asked the district court to consider the question.” Avery Dennison, 104 F.3d at 865 (Ryan, J., dissenting).
To be sure, parts of Aikens are rather cryptic. Nevertheless, I cannot agree with the court’s statement in the present case that “an impressive number of appellate courts have applied [Aikens’s] holding in the same way that Avery Dennison did.” Op. at 823. I am, in fact, not aware of any other appellate court that has applied Ai-kens in quite the same way that Avery Dennison did.
For example, Barbour v. Browner, 181 F.3d 1342 (D.C.Cir.1999), cited by the court in the present case, see Op. at 824 n. 10, was a Title VII case that was tried to a jury. The jury found for the plaintiff, and the district court denied the defendant’s motion for judgment as a matter of law. On appeal, the District of Columbia Circuit reversed, concluding that on the basis of *838the evidence presented at trial, a reasonable jury could not have concluded that the plaintiff was similarly situated to the person whose relatively favorable treatment the plaintiff claimed was circumstantial evidence of discrimination. See Barbour, 181 F.3d at 1345.
Barbour duly noted that because the case had been fully tried, “the question whether [the plaintiff] established a prima facie case is irrelevant.” Id. at 1347 (citing Aikens). But then Barbour concluded that “[tjhis does not mean, however, that in our analysis of ‘the ultimate question of discrimination vel non,’ we are obliged to pretend that there is evidence supporting a prima facie case when in fact there is not.” Id. (citation omitted). I believe that the District of Columbia Circuit’s reasoning was correct. According to Avery Den-nison and the opinion of this court today, however, Barbour revisited the prima facie case after trial and thus did exactly (or almost exactly) what Aikens supposedly forbids.
Similarly, in Coffey v. Dobbs International Services, Inc., 170 F.3d 323 (2d Cir.1999), also cited by this court, see Op. at 824 n. 10, the Second Circuit overturned a jury verdict for the plaintiff on a Title VII retaliation claim, concluding that the district judge erred by not granting the employer’s post-verdict motion for judgment as a matter of law. See Coffey, 170 F.3d at 327. Coffey cites Aikens for the proposition that “[b]ecause this case has been fully tried on the merits, we need not determine whether [the plaintiff] established a prima facie case.” See id. at 326. Then Coffey concludes that because the plaintiff failed to present any evidence suggesting that she was treated differently than other individuals who were -not retained when Dobbs, the employer, sold its Albany, New York operations to a new company, and because she had never requested that Dobbs transfer her to one of its other locations, “no reasonable jury could find that Dobbs’s failure to transfer [the plaintiff] was retaliatory.” Id. at 327.
The Second Circuit in Coffey expressly stated that it was examining “the ultimate question of discrimination vel non,” id. at 326, and there can be little doubt that a plaintiff who has introduced no evidence that she was treated differently than others who did not engage in protected activities will be unable to prove to a reasonable jury that she was the victim of retaliation. See, e.g., Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000) (noting that a causal connection between the protected activity and the adverse employment action or harassment is an element of a prima facie case for Title VII retaliation). But if one were inclined to take issue with the end result in Coffey, one could just as easily say that what the Second Circuit did was revisit the prima facie case (i.e., whether the plaintiff presented sufficient evidence that the adverse employment action was causally related to her engaging in protected activities) after the case had already been deemed worthy of submission to a jury.
The outcome of cases utilizing the McDonnell Douglas-Burdine burden-shifting formula should not turn on whether the district court concludes after trial that the plaintiff failed to establish a prima facie case (technically the wrong inquiry), or concludes that the plaintiff failed to produce sufficient evidence to permit a reasonable trier of fact to find in his favor on the “ultimate issue of discrimination”— because he produced insufficient evidence to support one of the facts constituting the prima facie case (technically the correct inquiry). Because the difference is essentially one of semantics, it is difficult to understand why Avery Dennison reversed the judgment of the district court, rather than affirming on different grounds after correcting the district court’s terminology.
In view of the factual finding of the district court in Avery Dennison that the employer’s actions were not causally related to Willis’s participation in protected activities, there was no’ way for any reasonable trier of fact to find in the EEOC’s *839favor on “the ultimate issue of discrimination” — unless, of course, the district court’s finding of no causal relationship was clearly erroneous. If that finding had been clearly erroneous, then judgment for the EEOC might logically have been required. But Avery Dennison did not conclude that the district court’s finding of no causal relationship was clearly erroneous. Instead, it purported to find a legal error that required reversal, and then sent the case back to the district court, where judgment was re-entered for Avery Dennison (supposedly on other grounds) and then affirmed by another panel of this court.
IV.
Perhaps the reason that Avery Denni-son attempts to limit the district court from revisiting the prima facie case once the matter goes to trial is because it overestimates what the plaintiff is then required to prove in order to win on the merits. The majority in Avery Dennison wrote that once the plaintiff has made out a prima facie case and the defendant has produced evidence of a legitimate nondiscriminatory reason for its actions, the “plaintiff is required to overcome the additional obstacle of the defendant’s rebuttal and convincingly demonstrate the existence of discrimination,” and that “St. Mary’s v. Hicks places the additional burden on Plaintiffs that they must prove not only that the defendant’s reason was a pretext, but that the real reason was discrimination.” Avery Dennison, 104 F.3d at 861-62.
This seems to me to be a misreading of St. Mary’s Honor Center. To be sure, the plaintiff in a Title VII case, in order to succeed, must persuade the trier of fact that the real reason for the defendant’s actions was discrimination. But in the ordinary course, the trier of fact may reasonably infer that the real reason for the defendant’s actions was illegal discrimination simply by virtue of being persuaded (1) of the facts of the plaintiffs prima facie case, and (2) that the defendant’s proffered legitimate nondiscriminatory explanation is pretextual. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., — U.S. -, -, 120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000) (reasoning that because “discrimination may well be the most likely alternative explanation” once the trier of fact is persuaded that the employer’s legitimate nondiscriminatory explanation is false, “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated”); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (“[Wjhen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not that the employer ... based his decision on an impermissible consideration.”).
Recently, the Supreme Court has suggested that there may be cases in which, “although the plaintiff has established a prima facie face and set forth sufficient evidence to reject the defendant’s explanation, no rational finder could conclude that the action was discriminatory.” Reeves, — U.S. at-, 120 S.Ct. at 2109 (partially disapproving Kline v. TVA, 128 F.3d 337 (6th Cir.1997)). But one can only assume that such cases will be rather unusual. (St. Mary’s Honor Center, however, was evidently one of those cases; the district court, the trier of fact in that case, disbelieved the defendants’ proffered explanation and found that there was “a crusade to terminate” the plaintiff, but declined to infer that the crusade was racially motivated. St. Mary’s Honor Ctr., 509 U.S. at 508, 113 S.Ct. 2742).
But let us be realistic. The most reasonable inference for jurors to draw, once they disbelieve the defendant’s proffered explanation for its actions, will ordinarily be that the real reason the defendant acted as it did was illegal discrimination. See Sanderson, — U.S. at-, 120 S.Ct. at 2108-09; see also Fisher, 114 F.3d *840at 1373 (Newman, C.J., dissenting) (“Though I agree ... that ‘a finding of pretext, together with evidence comprising a prima facie case, is not always sufficient to sustain an ultimate finding of intentional discrimination,’ it will be a rare case where this is not so.”) (citation omitted).
In short, I believe that if an appellate court is persuaded that the plaintiff in a Title VII case produced sufficient evidence at trial for a reasonable jury to have found in the plaintiffs favor, and that as a consequence the district court’s post-trial grant of judgment as a matter of law for the defendant was erroneous, the appellate court should simply say so. When that happens, the district court’s error is that it improperly substituted its judgment for that of the jury, not that the district court somehow contradicted now-binding implied findings that it supposedly made simply by letting the case go to trial.
V.
If Avery Dennison’s prohibition against revisiting the prima facie case is taken literally, meaning that the district court cannot question the proof constituting the plaintiffs prima facie case once the action is allowed to proceed to trial, then the decision is erroneous for all of the reasons set forth above. I also believe that this literal interpretation would place Awn/ Dennison in conflict with this court’s prior decision in Gafford v. General Electric Co., 997 F.2d 150 (6th Cir.1993), for the reasons well-stated by both the dissent in Avery Dennison and by the district court below. If, on the other hand, the thrust of Avery Dennison is only intended to require the district court to focus on the ultimate issue of discrimination once all the proof is in — a focus that includes consideration of whether the plaintiff has produced sufficient evidence to support all of the elements that constitute a prima facie case — then Avery Dennison is simply a trap for unwary district court judges who use the wrong terminology.
Either way, it appears that Avery Den-nison has caused unnecessary confusion within the circuit, as evidenced by Judge Ryan’s dissent in Avery Dennison itself and by the opinions of the district court below in both this and other cases. I thus join in the judgment of the court, but disagree with its defense of Avery Denni-son, which, in my opinion, only perpetuates the confusion.