Ash v. Tyson Foods, Inc.

Cite as: 546 U. S. ____ (2006) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

ANTHONY ASH ET AL. v. TYSON FOODS, INC.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 05–379. Decided February 21, 2006

PER CURIAM.

Petitioners Anthony Ash and John Hithon were superin-

tendents at a poultry plant owned and operated by re-

spondent Tyson Foods, Inc. Petitioners, who are African-

American, sought promotions to fill two open shift

manager positions, but two white males were selected

instead. Alleging that Tyson had discriminated on ac-

count of race, petitioners sued under Rev. Stat. §1977, 42

U. S. C. §1981, and Title VII of the Civil Rights Act of

1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq.

A trial proceeded in the United States District Court for

the Northern District of Alabama. At the close of the

plaintiffs’ evidence, Tyson moved for judgment as a matter

of law, see Fed. Rule Civ. Proc. 50(a). The District Court

denied the motion, and the jury found for petitioners,

awarding compensatory and punitive damages. The em-

ployer renewed its motion for judgment under Rule 50(b).

The District Court granted the motion and, in the alterna-

tive, ordered a new trial as to both plaintiffs under Rule

50(c). App. to Pet. for Cert. 35a; see generally Unitherm

Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U. S. ___, ___

(2006) (slip op., at 4–11) (discussing Rule 50).

The United States Court of Appeals for the Eleventh

Circuit affirmed in part and reversed in part. 129 Fed.

Appx. 529, 536 (2005) (per curiam). As to Ash, the court

affirmed the grant of the Rule 50(b) motion, deeming the

trial evidence insufficient to show pretext (and thus insuf-

ficient to show unlawful discrimination) under the burden-

shifting framework set forth in McDonnell Douglas Corp. v.

2 ASH v. TYSON FOODS, INC.

Per Curiam

Green, 411 U. S. 792 (1973). 129 Fed. Appx., at 533–534.

As to Hithon, the court reversed the Rule 50(b) ruling,

finding there was enough evidence to go to the jury. The

court, however, affirmed the District Court’s alternative

remedy of a new trial under Rule 50(c), holding that the

evidence supported neither the decision to grant punitive

damages nor the amount of the compensatory award, and

thus that the District Court did not abuse its discretion in

ordering a new trial. Id., at 536.

The judgment of the Court of Appeals, and the trial court

rulings it affirmed, may be correct in the final analysis. In

the course of its opinion, however, the Court of Appeals

erred in two respects, requiring that its judgment now be

vacated and the case remanded for further consideration.

First, there was evidence that Tyson’s plant manager,

who made the disputed hiring decisions, had referred on

some occasions to each of the petitioners as “boy.” Peti-

tioners argued this was evidence of discriminatory ani-

mus. The Court of Appeals disagreed, holding that

“[w]hile the use of ‘boy’ when modified by a racial classifi-

cation like ‘black’ or ‘white’ is evidence of discriminatory

intent, the use of ‘boy’ alone is not evidence of discrimina-

tion.” Id., at 533 (citation omitted). Although it is true

the disputed word will not always be evidence of racial

animus, it does not follow that the term, standing alone, is

always benign. The speaker’s meaning may depend on

various factors including context, inflection, tone of voice,

local custom, and historical usage. Insofar as the Court of

Appeals held that modifiers or qualifications are necessary

in all instances to render the disputed term probative of

bias, the court’s decision is erroneous.

Second, the Court of Appeals erred in articulating the

standard for determining whether the asserted non-

discriminatory reasons for Tyson’s hiring decisions were

pretextual. Petitioners had introduced evidence that their

qualifications were superior to those of the two successful

Cite as: 546 U. S. ____ (2006) 3

Per Curiam

applicants. (Part of the employer’s defense was that the

plant with the openings had performance problems and

petitioners already worked there in a supervisory capac-

ity.) The Court of Appeals, in finding petitioners’ evidence

insufficient, cited one of its earlier precedents and stated:

“Pretext can be established through comparing qualifica-

tions only when ‘the disparity in qualifications is so ap-

parent as virtually to jump off the page and slap you in

the face.’ ” Ibid. (quoting Cooper v. Southern Co., 390 F. 3d

695, 732 (CA11 2004)).

Under this Court’s decisions, qualifications evidence

may suffice, at least in some circumstances, to show pre-

text. See Patterson v. McLean Credit Union, 491 U. S.

164, 187–188 (1989) (indicating a plaintiff “might seek to

demonstrate that respondent’s claim to have promoted a

better qualified applicant was pretextual by showing that

she was in fact better qualified than the person chosen for

the position”), superseded on other grounds by 42 U. S. C.

§1981(b); Texas Dept. of Community Affairs v. Burdine,

450 U. S. 248, 259 (1981) (“The fact that a court may think

that the employer misjudged the qualifications of the

applicants does not in itself expose him to Title VII liabil-

ity, although this may be probative of whether the em-

ployer’s reasons are pretexts for discrimination”); cf.

Reeves v. Sanderson Plumbing Products, Inc., 530 U. S.

133, 148 (2000) (“[A] plaintiff’s prima facie case, combined

with sufficient evidence to find that the employer’s as-

serted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated”).

The visual image of words jumping off the page to slap

you (presumably a court) in the face is unhelpful and

imprecise as an elaboration of the standard for inferring

pretext from superior qualifications. Federal courts,

including the Court of Appeals for the Eleventh Circuit in

a decision it cited here, have articulated various other

standards, see, e.g., Cooper, supra, at 732 (noting that

4 ASH v. TYSON FOODS, INC.

Per Curiam

“disparities in qualifications must be of such weight and

significance that no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate

selected over the plaintiff for the job in question” (internal

quotation marks omitted)); Raad v. Fairbanks North Star

Borough School Dist., 323 F. 3d 1185, 1194 (CA9 2003)

(holding that qualifications evidence standing alone may

establish pretext where the plaintiff’s qualifications are

“ ‘clearly superior’ ” to those of the selected job applicant);

Aka v. Washington Hospital Center, 156 F. 3d 1284, 1294

(CADC 1998) (en banc) (concluding the factfinder may

infer pretext if “a reasonable employer would have found

the plaintiff to be significantly better qualified for the

job”), and in this case the Court of Appeals qualified its

statement by suggesting that superior qualifications may

be probative of pretext when combined with other evi-

dence, see 129 Fed. Appx., at 533. This is not the occasion

to define more precisely what standard should govern

pretext claims based on superior qualifications. Today’s

decision, furthermore, should not be read to hold that

petitioners’ evidence necessarily showed pretext. The

District Court concluded otherwise. It suffices to say here

that some formulation other than the test the Court of

Appeals articulated in this case would better ensure that

trial courts reach consistent results.

The Court of Appeals should determine in the first

instance whether the two aspects of its decision here

determined to have been mistaken were essential to its

holding. On these premises, certiorari is granted, the

judgment of the Court of Appeals is vacated, and the case

is remanded for further proceedings consistent with this

opinion.

It is so ordered.