The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ AUG 28, 2006
THOMAS K. KAHN
CLERK
No. 04-14749
________________________
D. C. Docket No. CV-02-PT-01828-M
EVER HIGGINS,
Plaintiff-Appellant,
versus
TYSON FOODS, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 28, 2006)
ON REMAND FROM THE
UNITED STATES SUPREME COURT
Before BIRCH, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Ever Higgins brought this action based upon the failure of her supervisors at
Tyson Foods to promote her to the position of Oxford Complex HR Manager. The
district court granted summary judgment to the defendant and entered a lengthy and
detailed Memorandum Opinion. We affirmed based upon that order of September 2,
2004.
At the time of considering the defendant’s motion for summary judgment, the
case had been reduced somewhat. As set forth by the district court, the following
claims had been conceded by the plaintiff: (1) Intentional infliction of emotional
distress; (2) Negligent hiring; (3) Conversion; (4) Wilful misrepresentations; (5)
Fraud in the inducement; (6) Breach of contract; and (7) Breach of implied covenant
of good faith and fair dealing. What remained to be considered were race and age
discrimination claims related to the Oxford Complex HR Manager position, plus
disparate impact claims. In analyzing these claims and the legal requirements
imposed upon the plaintiff the district court applied our existing precedent that
required evidence that the disparity in qualifications is “so apparent as virtually to
jump off the page and slap you in the face” citing Cofield v. Goldkist, Inc., 267 F.3d
1264, 1268 (11th Cir. 2001). For the discrepancies to “jump off the page and slap you
in the face” the district court determined that they must be of such weight and
significance that no reasonable person could have chosen the other candidate over the
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plaintiff. This was based upon Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir.
2000). The district court concluded that this case is “the mirror image of Lee and
Cofield.”
On February 27, 2006, the Supreme Court entered the following order:
The petition for a writ of certiorari is granted. The judgment is vacated
and the case is remanded to the United States Court of Appeals for the
Eleventh Circuit, for further consideration in light of Ash v. Tyson
Foods, Inc., 546 U.S. ____(2006).
In Ash the Supreme Court held that our test, as set forth in Cofield, is
“unhelpful and imprecise” as an elaboration of the standard for inferring pretext from
superior qualifications. While not articulating the standard to be used, the Court
made reference to a series of opinions expressing the test differently. These include
Cooper v. SouthernCo., 390 F.3d 695 (CA11 2004) (noting that “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”); Raad v. Fairbanks North Star Borough School
Dist., 323 F.3d 1185, 1194 (CA92003) (holding that qualifications evidence standing
alone may establish pretext where the plaintiff’s qualifications are “clearly superior”
to those of the selected applicant); and Aka v. Washington Hospital Center, 332 U.S.
App. D.C. 256, 156 F.3d 1284, 1294 (CADA 1998) (en banc) (concluding the
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factfinder may infer pretext if a “reasonable employer would have found the plaintiff
to be significantly better qualified for the job”).
Since Ash our Court has used the Cooper test. See, e.g., Brooks v. County
Commission of Jefferson County, Al., 446 F.3d 1160 (11th Cir. 2006); Watkins v. City
of Huntsville, (No. 04-15607) (11th Cir. Apr. 18, 2006); Roper v. City of Foley Police
Dept., (No. 05-15199) (11th Cir. Apr. 18, 2006); Price v. M.&H. Valve Co., (No. 05-
15205) (11th Cir. Apr. 7, 2006). This has been most recently discussed in Ash v.
Tyson Foods, Inc., (No. 04-11695) (Aug. 2, 2006) which is our Court’s opinion
following the remand from the Supreme Court . In sum, the test is whether the
disparities in qualifications are 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.
After a careful review of the record in this matter, we are convinced that the
district court applied the correct test as outlined above. The district court equated the
language of “jump off the page and slap you in the face” with requiring the plaintiff
to establish that any disparity between her qualifications and the qualifications of
Carter and Burdick were so great that no reasonable person would have selected
either Carter or Burdick over her. After a painstaking analysis of the entire
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procedural history, including that of a special review panel, the district court
concluded that the plaintiff has simply failed to meet that test. We agree.
A good summary of this history is reflected in a portion of the district court’s
order:
Based on all of the information he had collected at the time of his
decision, Pittard determined that Carter, an African-American, was the
most qualified for the position in Oxford. Pittard based his decision on
the facts that: Carter had a college degree; was bilingual; had great
successes in her current plant; had high references; was willing to
relocate; exhibited a high degree of enthusiasm and motivation for the
job; and interviewed extremely well. During her interview Carter gave
specific answers to Pittard’s questions and gave descriptions of
programs that she initiated in her then current role as Plant HR Manager.
Pittard also felt that Carter was innovative because she developed
solutions to thorough problems.
When Carter turned down the position, Pittard determined that the next
qualified candidate was Burdick because she: was successful in her job;
had a good track record; had a high degree of enthusiasm about the job;
had a college degree; was heavily involved in the community and
willing to do more; and was given high marks by all her references.
An independent review panel at Tyson revisited the promotion decision
and also determined that Burdick was more qualified than plaintiff for
the position. Higgins, Hithon and Burdick all interviewed with the
panel, and were asked questions designed by the consulting firm to elicit
the candidates’ assessments of their own competence in the areas of
intellectual, personal, interpersonal, management, leadership, and
motivational. Each interview lasted approximately three and a half
hours and each candidate was asked the same questions. Each panelist
was also given a copy of the candidates’ resumes to review before their
interviews.
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Before the interviews began, the panel was informed that it was to make
the best selection for the position and that whomever the panel selected
would be placed in the position. The panel was told that their job was
to “second-interview these individuals as if this position had never been
filled.” At the end of each candidate’s interview, the panel reviewed
their opinions of the candidate’s strengths and weaknesses. After the
interviews, each panelist ranked the candidates in the following manner:
Mantooth Roles Eggman Parks
1. Burdick 1. Burdick 1. Burdick 1. Higgins
2. Higgins 2. Higgins 2. Higgins 2. Burdick
3. Hithon 3. Hithon 3. Hithon 3. Hithon
Three of the four panelists determined that Burdick was the most
qualified candidate for the position. The fourth panelist, Parks,
determined that Higgins and Burdick were equally qualified, but that
Higgins should receive the promotion because of her seniority. The
panel ultimately recommended that Burdick was “the candidate who best
fits the Oxford Complex HRM position.”
Burdick has been employed by Tyson in a personnel function since June
1992. (footnotes omitted).
Higgins v. Tyson Foods, Inc., mem. op. At 71, 72 (N.D. AL. Sept. 2, 2004).
After considering all of the evidence presented, the district court concluded:
Plaintiff’s argument is in essence that, since she had seniority, she
was entitled to the job. That is not the measure. There is no direct
evidence of discrimination as to age or race. Assuming without
deciding, that plaintiff has proved a prima facie case, defendant has
articulated that it determined Burdick to be better qualified after a
considered evaluation which applied reasonable criteria similar to that
in Lee. 226 F.3d at 1252. The initial evaluation was confirmed by an
independent review. Plaintiff has not presented sufficient evidence to
establish pretext. (footnote omitted).
Id. at 83, 84.
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In deciding what the appropriate test should be, we note the following
observation by the district court:
Other circuits have more clearly articulated the evidentiary burden
a plaintiff must meet in order to prove pretext by showing she was
substantially more qualified than the person promoted. See Fulton
County, 207 F.3d at 1340. In Deines, for example, the Fifth Circuit
affirmed the district court’s instruction to the jury stating that
“disparities in qualifications are not enough in and of themselves to
demonstrate discriminatory intent unless those disparities are so
apparent as virtually to jump off the page and slap you in the face.” 164
F.3d at 280. The court explained that the phrase “jump off the page and
slap [you] in the face” ...should be understood to mean that 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.
This evidentiary standard does not alter the plaintiff’s evidentiary
burden to prove the fact of intentional discrimination by a
preponderance of the evidence. Instead, the standard only describes the
character of this particular type of evidence that will be probative of that
ultimate fact. Id. At 280-81. (footnote omitted).
Id. at 85, 86.
The sole issue before us at this point is the legal test the district court used in
granting summary judgment in favor of Tyson Foods. We are satisfied that the court
used the correct test as set forth in Cooper. Although reference was made to the
language found to be “unhelpful and imprecise” by the Supreme Court, the district
court clearly equated this to mean that the “disparities in qualifications must be of
such weight and significance that no reasonable person, in the exercise of impartial
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judgment, could have chosen the candidate selected over the plaintiff for the job in
question.” Consequently, we again affirm the ruling of the district court.
AFFIRMED.
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