Petition for Writ of Certiorari — Ash v. Tyson Foods, Inc. (No. 06-706)

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

a Supreme Court. US

- Fipter

: 2

| -LE DO

No. 06-9. -7:05 "07 17 2006

| Jn The OFFICE OF THE CLERK

Supreme Court of the Anited States

ANTHONY ASH and JOHN HITHON,

Petitioners,

Vv.

TYSON FOODS, INC..

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

ALICIA K. HAYNES

HAYNES & HAYNES. PC.

1600 Woodmere Drive

Birmingham, AL 35226

(205) 879-0377

ERIC SCHNAPPER

Counsel of Record |

School of Law

University of Washington

P.O. Box 353020

Seattle, WA 98195

(206) 616-5167

Counsel for Petitioners

QUESTIONS PRESENTED

(1) In Ash v. Tyson Foods, Inc., 126 Sup. Ct. 1195

(2006), this Court noted that the courts of appeals “have

articulated various ... standards” regarding when a

plaintiff may support a claim of employment discrimina-

tion by adducing evidence that he or she was better

qualified than the individual selected for a disputed

position. The question presented is the issue expressly left

unresolved by Ash: “what standard should govern pretext

claims based on superior qualifications[?|]” 126 Sup. Ct. at

1197. ~

(2) How and by whom should evidence of racist

remarks be evaluated in a case alleging racial discrimina-

tion?

PARTIES

The parties to this action are set forth in the caption.

iil

TABLE OF CONTENTS

Page

Cs FUORI jisicsitciiercsvccnincvneieedidionnanen i

FIG encstncesvicscsiineinidcnidetaieiiaenaininianeabamanl il

CRE TIGRE eiistccconsivrcestieviinstiniaisthaitasipsaitiedennianmibantummaiaia 1

Skeet OF CUI occecicccencsivivninvincitsnnnicenniceiniannaan 2

Re RIG ea ciitnsceccininssisnsamicdniscccneineanpaaredioaiaen 2

See ET Ci iscsvisiisnnneenecsceenintennaniaimaiie 3

I. There Is A Widespread Conflict Among The

Circuit Courts Regarding When, Or Indeed

Whether, Evidence Regarding Comparative

Qualifications Can Be Utilized To Prove In-

vidious Discrimination In Employment............. 10

II. The Decision Of The Eleventh Circuit Conflicts

With Decisions Of This Court And Of Numer-

ous Courts Of Appeals Regarding The Evalua-

tion Of Biased Remarks In Discrimination

COG raxesnesnverscenneissdienienindsebanienesmeiaaeannets 23

CO ce vicicnnittinisniieinciiimammmaaes 30

APPENDIX

Opinion of the Court of Appeals, August 2, 2006............. la

Opinion of the Court of Appeals, April 19, 2005............... 9a

Memorandum Opinion of the District Court, March

Fe, HOOT sivnnricnninescnccimcstsenaietaiennniieaiibiaiiniebiamatanaimui 22a

Order of the District Court, May 18, 2004... 42a

Order of the Court of Appeals, October 2, 2006 ............. 43a

District Court Decisions in the Eleventh Circuit

Applying the “No Reasonable Person” Standard........ 45a

TABLE OF CONTENTS - Continued

District Court Decisions in the Fifth Circuit Apply-

ing the “No Reasonable Person” Standard................. 47a

District Court Decisions in the Seventh Circuit

Applying the “No Reasonable Person” Standard........ 49a

TABLE OF AUTHORITIES

Page

CASES

Aka and Lathram v. Snow, 336 F.3d 1085 (D.C.Cir.

dishes tii ta pe cca sslase daiplaesoaphais euadenisaavaaten ts peeeeets 20

Aka v. Washington Hosp. Center, 156 F.3d 1284

a, IY TEs sis si coiacids Coaecndineina anand batseneeceababamceciaminds 20

Alexander v. Fulton County, Georgia, 207 F.3d 1303

NG Sick ciiicincsnncascsscontenmbcchantaviowniddetaieseanss 12, 13

Anderson v. City of Bessemer City, 470 U.S. 564

TD iid sandctvubunpueitssdaatetertinindesusiadaabentaedened 25, 28, 29, 30

Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, ____ U.S.

Sa) eS kdomhesviphniiaindspisandvdatdeastebinsiiatnebnnesenvainiiin passim

Barnes v. United States Department of the Navy, 95

ee RR BE Oe Ce FB tikiitereimnse 16

Bernales v. Cook, 37 Fed. Appx. 792 (7th Cir. 2002) ........ 22

Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997)........ 21

Brooks v. County Commission of Jefferson County,

Ala., 446 F.3d 1160 (11th Cir. 2006)............... eee 12,13

Carberry v. Monarch Marking Systems, Inc., 30

Pod. Agmx. O09 (Gti Cae. 2008) ccecisessscsssvectesesicesseverevess 19

Cardova v. State Farm Ins. Companies, 124 F.3d

Re CE EE ST cts harcxtnsitinscegneicnicvsnanbieounie te 27

Carter v. George Washington University, 387 F.3d

PG SIR cod ceirastascistectccsbiccnceg alacsucauaeueccacapicdassaasatinde 20

Celestine v. Petroleos de Venezuela, 266 F.3d 343

CR SU, BED pcicwetncrsctesvconevaes isGisiaiennddmadeheanaeiunbainihida 16

Chuang v. University of California Davis, Bd. of

Trustees, 225 F.3d 1115 (9th Cir. 2000)...............ccccc0000 27

TABLE OF AUTHORITIES - Continued

Page

Chustz v. City of New Orleans, 2002 WL 31556353

Esme tits RID HERG MINED sisicicckusloesaceinieessdaeestnasiecdaiimesedwsecees 16

Cichon v. Exelon Generation Co., L.L.C., 401 F.3d

REESE DOT EEN ES eee Oa EM 22

Cook v. Mississippi Dept. of Human Services, 108

Fed. Appx. 852 (Sth Cir. 2004) .......cccccccssccssecesesvenscereeees 16

Cooper v. Southern Co., 390 F.3d 695 (11th Cir.

a eee silicaleetiniabeditinnasensitemiveisteiniadieien 8,12

Cornwell v. Electra Central Credit Union, 439 F.3d

RN Re i 16

Dancy-Pratt v. The School Board of Miami-Dade

County, 2001 WL 1922063 (S.D.Fla. Dec. 13,

SERENE Tie er e O CET R e e O DR 13

David v. Caterpillar, Inc., 324 F.3d 851 (7th Cir.

leith cdighiailastacices abldtihiipaibandeilois schigisaliccshdaalieaabemieiiiandiiaeld 22

Deines v. Texas Department of Protective and

Regulatory Services, 164 F.3d 277 (5th Cir. 1999)........ 15

Dennis v. Columbia Colleton Medical Center, Inc.,

290 F.3d GSO (4th Cir. 2O0B).......covccscsssccecrcossssesesesers 20, 21

Dorrego v. Public Health Trust of Miami Dade

County, 293 F. Supp. 2d 1274 (S.D. Fla. 2003)............. 13

EEOC vu. Heartway Corp., 2006 WL 3030562 (10th

Es ___RRUNer cree IR NOOR gr EE eT 29

Evans v. City of Bishop, 238 F.3d 586 (5th Cir.

SIciisccch nick sii dibk busch vidas cekaaiaieacambeeseasnadicedeionaamaaiaanaantraanas 27

Farrell v. Butler University, 421 F.3d 609 (7th Cir.

EER Rte nen Re ROOD OR CROFT eT NEE 22

Glenn’s Trucking Co. v. NLRB, 298 F.3d 502 (6th

SN MII <scadbesctineliciienteisbacatidnaleadeasinicoailachakad Sousaiimmmatonsanbuesuttie 20

TABLE OF AUTHORITIES ~— Continued

Page

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th

RAE SUD ctinenincenntecinininuninaidsdeeniataiaioelaimaiscibainnidmaaiils 18

Green v. City of New York, 2006 WL 2846473 (2d

Se SOE, POND ovvcinvnncnctncinnnvssesiinindeapiveniennaiabathenntiins 1

Green v. Miami-Dade County, 2003 WL 22331877

RO Nem EEN er emer re 29

Haas v. Betz Laboratories, Inc., 1999 WL 451206

Se Sr, REE Gi. Beet ccviictecicenionnnrtbcncinnndnmbauseisleuioncsiles 17

Harrington v. The Children’s Psychiatric Center,

2003 WL 23356396 (S.D.Fla. Dec. 9, 2006) .................. 13

Harvey v. Office of Banks and Real Estate, 377 F.3d

Be es i accicasoicinsncincecestciciavnenievenmereadisnateds 22

Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d

Be CO es Serta ininnsbnessisddenereabinnadeaonnimalohnabans 21

Higgins v. Tyson Foods, Inc., 2006 WI, 2466178

CRs Gas FI, I, Be vectiwinescctonsnaicerncveticsarenens 11, 12, 14

Hithon v. Tyson Foods, Inc., 144 Fed. Appx. 795

Ee A see eiiacistciieisoccnntecciniehinsiaeuisiaseiadaninaiiemanaeieesa 12,14

Hooker v. Victoria’s Secret Stores, Inc., 2001 WL

1692436 (6th Cir. Nov. 21, 2001).......cccccccccrccessesesseseseees 26

Hubbard v. M & H Valve Co., 2006 WL 1410147

gi ee GS Re ene a eee meee 12

Humphrey v. Potter, 162 F. Supp. 2d 1354 (S.D.Fla.

PUTT iciasesseniivpivcsiieciiesieiestasiinectieaiiciistedabidaheatidbeaaniennsiainiiacadingueiaiaebinniin 13

Jenkins v. Nashville Public Radio, 106 Fed. Appx.

Be CER eee St iiichteccnericstesevendeendsatoceumiosaeasnamionawnsiionts 19

Jordan v. City of Gary, Indiana, 396 F.3d 825 (7th

NK CINE cssiieeienasecieuscuuaacpisecaaensbaascnatiamuuiatathiadesaauneads 22

vill

TABI™ OF AUTHORITIES ~ Continued

Page

King v. Healthrider, Inc., 1999 WL 825122 (6th Cir.

RN a See sasisdiiiccapeddlecindiamtainsamntuegeeaaiiaier tes 19

Kozlowski v. Fry, 238 F. Supp. 2d 966 (N.D.IIL.

SUID shininstcocscibcincassbiaititeiidebenstdiadindiiaamitaieeateiana anal 22

Lall v. Perot Systems Corp., 2004 WL 884438

CF ER. a: FS Fe TG vssicssvsnvesventsvtebiatsiniiommtieianiats 16

Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir.

SPO) icvinscdetinisiuctsitnbaemusaniactaieterpndediemnamaaaae 7, 12,13

Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1991) ...... 18

Lust v. Sealy, Inc., 277 F. Supp. 2d 973 (W.D.Wis.

FIED vatisnvnarstcetecntsivccapvisaiiaiecumimadanebiimmaadeaaa 22

Margolis v. Tektronix, Inc., 44 Fed. Appx. 138 (9th

CE: SD kcteechstnisceniniitionpiniiiaetants nadtindiaaninmaaar ne 17

Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002) ....... 22

Milledge v. Rayonier, Inc., 2006 WL 2257949 (11th

CAP. Ft, B, Fe itcssimintevrmisnveanaianas 12,14

Mlynczak v. Bodman, 442 F.3d 1050 (7th Cir. 2006)........ 22

Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th

Ca RI sicascncscossocsinccoscceeeaseactotiameeaeaen aaa 16

Odima v. Westin Tucson Hotel Co., 991 F.2d 585

CORR: Cie BID avicicnrsinsussncspnristctsivenneanccimeiaeimanianan 18, 19

Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th

CD FD cccsnnivericeveiniciesiacantnimiammanaa eee 26

Patterson v. McLean Credit Union, 491 U.S. 164

(RO incnsiivniaccsarcssneibecsvindiaesammemadiasiad aaane 14

Phelan v. Cook County, 463 F.3d 773 (7th Cir. 2006)....... 29

Plotke v. White, 405 F.3d 1092 (10th Cir. 2005)............... 26

TABLE OF AUTHORITIES - Continued

Page

Raad v. Fairbanks North Star Borough School

District, 323 F.3d 1185 (9th Cir. 2003)...........ccccscceesorees 16

Reed v. Lawrence Chevrolet, Inc., 108 F.3d 393 (7th

ais tscnaveseceborcienevestviseesenesiorsennienes 22

Reed v. Manteno School Dist. No. 5, 59 Fed. Appx.

ie i aaa scanned cn eutisabivedeteussesnerrenive 22

Reeves v. Sanderson Plumbing Products, Inc., 530

nics csccdtensiececnienesvedeeeieesene 25, 26, 27, 30

Reynolds v. City of Dallas, 2004 WL 893425

SE, PEPER BO, WOE reecesccscnsencevevevesetevneseseseceeesereeses 15

Rogers-Libert v. Miami-Dade County, 184 F. Supp.

24 1273 (S.D.F la. 2O001)......sescsccvees iyeorrveessevssversivenveetortens 13

Roy v. United States Department of Agriculture, 115

Pee Fe, 19S (GE CAr, 2004) ....ccccrerseseeereserrvessosseee 15, 16

Runnels v. Texas Children’s Hospital Select Plan,

167 Fed. Appx. 377 (5th Cir. 2006) .....c.cccssssseeeeseees 15, 16

Russell v. McKinney Hospital Venture, 235 F.3d 219

Tiss cas eneepeneennckteivetoeterseveres 26

Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990)......... 29

Siegel v. Alpha Wire Corp., 894 F.2d 50 (3d Cir.

oc ccceneessdmavneeedeaneversseaneneneete 29

Stewart v. Ashcroft, 352 F.3d 422 (D.C.Cir. 2003)............ 21

Sublett v. John Wiley & Sons, Inc., 2006 WL

2613509 (7th Cir. Sept. 19, ZOOG) ........cccccsscccssessccceeesees 22

Taylor v. Roche, 2006 WL 2613659 (11th Cir. Sept.

Nees sacs cacascuuvenesueenvtereeessensexenevsvess 11,13

Taylor v. Williams, 2000 WL 1844698 (S.D.Ala Oct.

Neen nh scccinncdcesstonseeeveterersvvessevesesceeers 13

TABLE OF AUTHORITIES — Continued

Page

Texas Dept. of Community Affairs v. Burdine, 450

Sse Se CIP ccnbceaivinissncnpissuvestaesectenehaniitabnduaddandiasailiniais 14, 19

Thanonsingh v. Board of Educ., 462 F.3d 762 (7th

SR TIE I csisnncs'sccssveecdssbonsnacseapiuiandiniinmsionasauibienibindiiadaieaadia dias 29

Thomas v. California State Department of Correc-

tions, 1992 WL 197414 (9th Cir. Aug. 18, 1992)........... 18

Tippier v. Spacelabs Medical, Inc., 2006 WL

1130809 (11th Cir. April 27, 2006) .......... cc eceeeeeeeeeees 12

Tucevich v. State of Nevada, 1999 WL 62735 (9th

Ce GR, ile ME sinciciiinssiininiacieeiciinialindiaisanldiiiealaiete 16, 18

Twilley v. Burlington Northern, etc. Rwy. Co., 351

F. Supp. 2d 1299 (N.D.Ala. 2004)...............:cccceeeeeeeeeeeees 13

Watkins v. Huntsville, Ala., 176 Fed. Appx. 955

CE GR Be cckitiecnssdccsintntntciseneniniachiescichmmaatanminiia 12

Wright v. Columbia Women & Children’s Hospital,

Ne Oi ie Re sveiecisecsoevintsinetmncistetinaniosbanasiiaatetdecaed 16

Zambetti v. Cuyahoga Community College, 314 F.3d

CO Ce liv cies wcecuihiccrrnbndeiuiideatdincianiaanininaiion 19

STATUTES _

Be he as SEA? stctensntinstnidinaimaieniamaiaeaa 2

2 ES Te RRR NEM ON OU MN NNN NE SAE STS 11

Ch LG. FE cient encitivicintnicienianininainindceseinnnea 2

PETITION FOR A WRIT OF CERTIORARI

Petitioners Anthony Ash and John Hithon’ respect-

fully pray that this Court grant a writ of certiorari to

review the judgment and opinion of the United States

Court of Appeals entered on August 2, 2006.

OPINIONS BELOW

The August 2, 2006 opinion of the court of appeals,

which is not officially reported, is unofficially reported at

2006 WL 2219749, and is set out at pp. la-8a of the Ap-

pendix. The October 2, 2006 order of the court of appeals

denying rehearing, which is not officially reported, is set

out at pp. 43a-44a.

The April 19, 2005 opinion of the court of appeals,

which is reported at 129 Fed. Appx. 529, is set out at pp.

* Resolution of the questions presented in this case would affect

petitioners in different ways.

The courts below, based on their views of the two questions

presented, concluded that the jury’s finding of racial discrimination

against petitioner Ash should be set aside, and judgment entered in

favor of Tyson. A decision by this Court in favor of Ash on either of those

issues would require that that decision to award judgment as a matter

of law be either reversed or vacated.

The court of appeals overturned the judgment as a matter of law

against petitioner Hithon, but upheld the district court’s decision to

order a new trial. The district court’s new trial order was based on its

conclusion that the jury’s finding of discrimination against Hithon was

“against the great weight of the evidence.” (42a). That new trial order

itself contained no analysis of the evidence in this case; it necessarily

was colored by the trial judge’s conclusion, set forth only two months

earlier, that much of the evidence offered by Hithon could not as a

matter of law support a finding of discrimination. A decision by this

Court in favor of Hithon regarding the issues presented in this petition

would require that the trial judge reconsider his decision regarding

whether the jury verdict was against the great weight of the evidence.

9a-21la. The March 26, 2004 memorandum decision of the

district court, which is not officially reported, is set out at

pp. 22a-4la. The May 18, 2004 order of the district court,

which is not officially reported, is set out at p. 42a.

STATEMENT OF JURISDICTION

The decision of the court of appeals was entered on

August 2, 2006. A timely petition for rehearing was denied

on October 2, 2006. This Court has jurisdiction pursuant

to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 703(a)(1) of the 1964 Civil Rights Act, 42

U.S.C. § 2000e-2(a)(1), provides in pertinent part:

It shall be an unlawful employment practice for

an employer ... to discriminate against any in-

dividual with respect to his .. . terms, conditions,

or privileges of employment, because of such in-

dividual’s race, color, religion, sex, or national

origin.

Section 1981 of 42 U.S.C. provides in pertinent

part:

(a) All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and en-

force contracts ... as is enjoyed by white

citizens....

(b) For the purposes of this section, the term

“make and enforce contracts” includes the

making, performance, modification, and

termination of contracts, and the enjoyment

of all benefits, privileges, terms and condi-

tions of the contractual relationship.

STATEMENT OF THE CASE

In February 2006 this Court granted certiorari in the

instant case and overturned per curiam several aspects of

the Eleventh Circuit’s 2005 opinion. On remand, the

Eleventh Circuit reinstated the holding that had been

vacated by this Court. This petition seeks resolution of

several inter-circuit conflicts that persist despite this

Court’s 2006 decision.

This litigation concerns two promotions that were

made in the summer of 1995 to the position of shift man-

ager at a Gadsden, Alabama plant of Tyson Foods. The

plant processes chickens. At the time petitioners Ash and

Hithon, both African-American men, were unit managers

at the plant, the position immediately below shift man-

ager. The shift manager vacancies at issue were both filled

by whites with far less experience at Tyson, or with

chicken processing, than Ash and Hithon.

A jury found that Tyson was guilty of racial discrimi-

nation against both Ash and Hithon, and awarded each

plaintiff $250,000 in compensatory damages and $1.5

million in punitive damages. At trial the parties offered

sharply conflicting evidence on a wide range of factual

issues. The questions presented by this petition, concern

the legal standards to be applied in resolving those dis-

puted issues. Two aspects of the trial record are material

here.

First, it was undisputed that on several occasions

Thomas Hatley, the white plant manager who made the

promotion decisions, addressed Ash and Hithon as “boy.”

(34a). On one of those occasions Ash’s wife was present

and objected to the remark, pointing out that her husband

was an adult; in response, “Hatley laughed.” (/d.). Tyson

filed an in limine motion to bar admission of this evidence,

objecting in part that it there would be “undue prejudice”

if the jury learned what Hatley had said.’ Tyson also

requested an instruction limiting jury consideration of

-these remarks. The district court denied the in limine

motion and refused to give the requested instruction.

Hatley’s action in addressing Ash and Hithon as “boy” was

a major issue at trial. In their c_osing arguments, counsel

for plaintiffs’ and defendant’ discussed and disagreed

about the significance of Hatley’s actions in addressing

Ash and Hithon as “boy.”

Second, both parties offered substantial evidence

regarding whether the white individuals who received the

* Defendant’s Motion in Limine Regarding “Stray Remarks” As To

Plaintiffs Anthony Ash and John Hithon, p. 2.

* Tr. 571-72 (“[Wle all know that is a term meant to be deprecating

or a put down to a black man. We all know that. We’re southerners. .. .

I suggest to you that that remark shows a reflection of [Hatley’s]

thinking and Tyson’s thinking.”)

* Tyson’s attorney insisted that the word “boy” “wasn’t delivered

with that level of venom and hostility that [plaintiff’s witnesses]

delivered it on the witness stand.” (Tr. 612). If the word “boy” had been

used in that tone of voice, he urged, Ash and Hithon would surely have

complained to the plant personnel section. (Tr. 613). Of course, since

Hatley was the plant manager, the staff in the personnel section were

his subordinates.

Defense counsel also acknowledged that the term “boy” could have

a racist meaning when used as a form of address to a African-American

man:

I know they were said, and | have to deal with them, be-

cause I grew up in Anniston in the 1950’s, and I know what

that comment means. ... [W]hen I was in high school, that

... was fighting words ... [I]f Hatley said it the way it was

said on that witness stand by those witnessed, you know,

back when I was growing up, there would probably he a lit-

tle trouble. And that was a mean thing to say, and I would

not defend that.

(Tr. 611).

disputed promotions were less qualified than Ash and

Hithon. Plaintiffs offered evidence tending to show that

under Tyson’s own written standards the two whites were

far less qualified than Ash and Hithon, and that one or

both of the whites did not even meet the minimum re-

quirements for the job.

Plaintiffs introduced a company “job summary” which

stated that three to five years of experience with Tyson

was among the “requirements” for the job of shift man-

ager; one of the whites promoted, Steve Dade, had worked

for Tyson for less than two years. A separate Tyson “Per-

sonnel Policy” indicated that when filling vacancies,

priority consideration should be given to Tyson workers in

the complex or department in which that vacancy existed.”

Although Ash and Hithon were in the same plant as the

two shift manager positions, the other white promoted,

Randy King, was not from the Gadsden plant or the

complex of which it was a part. Third, another Tyson

“Personnel Policy” offered into evidence stated that promo-

tion was among the “benefits and rights for team members

who establish -seniority with the company.” Ash and

Hithon had fifteen and thirteen years, respectively, of

seniority with Tyson, compared to less than two years for

Dade.

Tyson offered two types of evidence to respond to the

contention that Ash and Hithon were more qualified under

the company’s own standards. First, the defendant offered

testimony by Hatiey, the plant manager who made the

disputed promotion decisions, that he simply did not know

> Plaintiffs’ Exhibit 2.

* Plaintiffs’ Exhibit 10 p. 8.

” Plaintiffs’ Exhibit 9.

about these written Tyson personnel and promotion

standards.” Second, Tyson disputed the meaning of the

written standards in question. For example, although the

job summary stated that three to five years experience

was a “requiremen|t],” a defense witness testified that

that amount of experience was merely “suggested.”

In addition, Tyson offered evidence that a primary

criterion that was used to determine the individual to

receive each promotion was whether he or she did not

work at the Gadsden plant, and thus could bring a fresh

approach and prospective.” Application of that criterion

would have favored the two whites actually selected.

Hatley explained that he used that standard — rather than

experience or seniority or work in the same department ~

because the Gadsden plant was assertedly losing money,

and was at risk of being closed by Tyson.” Plaintiffs

contended that this ad hoc standard had been fashioned

simply to rationalize promoting two less qualified whites;

plaintiffs offered evidence that the Gadsden plant was not

actually losing money, and that one of the whites selected

had come from a Tyson plant that had been closed because

it was not profitable.”

Much of the closing argument at trial was devoted to

these disputes regarding whether the whites who were

promoted were, under Tyson’s own standards, far less

* Tr. 355-56, 536, 539.

* Tr. 607.

° Tr. 436, 445, 446.

" Tr. 439-40.

? Tr. 449.

qualified than Ash and Hithon.” The jury was properly

instructed that it could not find Tyson liable merely

because the promotion decisions “were stupid decisions or

bad decisions,” but only if those decisions had been moti-

vated by racial discrimination.“

Following the jury verdict for plaintiffs, Tyson moved

for judgment as a matter of law. The district court con-

cluded as a matter of law that much of the evidence

offered by plaintiffs could not be relied on to support the

jury’s finding of intentional discrimination. First, applying

Eleventh Circuit precedent, the trial judge held that

plaintiffs could not rely on evidence that they were better

qualified than the promoted whites, unless that evidence

was so extraordinary it “jump[s] off the page and slap[s

you] in the face.” (3la) (quoting Lee v. GTE Florida, Inc.,

226 F.3d 1249, 1254 (11th Cir. 2000)). Even if the plaintiffs

were more qualified than the whites who received the -

disputed promotions, the court held, any disparity was not

great enough to meet that demanding standard. (33a).

Second, the judge concluded that Hatley’s use of the term

“boy” was not “racial in nature.” (34a). The judge also

ruled, in the alternative, that Tyson was entitled to a new

trial, in part because “the jury’s verdict of discrimination

is against the great weight of the evidence.” (42a).

In its 2005 decision, the Eleventh Circuit upheld the

trial judge’s conclusion that as a matter of law neither the

evidence regarding qualifications and nor the evidence

regarding Hatley’s actions in calling Ash and Hithon “boy”

could support the jury’s finding of discrimination. The

® Tanscript, pp. 560, 573-74, 576-85, 589, 603-04, 605-07, 617,

622. ©

* Transcript, p. 636.

court of appeals held that evidence that Ash and Hithon

were more qualified could not be relied on to show an

employer’s reasons were a pretext for discrimination,

unless the disparities in qualifications were so great that

they “virtually jump off the page and slap you in the face.”

15a (quoting Cooper v. Southern Co., 390 F.3d 695, 732

(11th Cir. 2004)). The court of appeals also held that as a

matter of law Hatley’s use of the term “boy” when address-

ing Ash and Hithon was not evidence of discrimination;

only use of the phrase “black boy,” the court insisted, could

support a finding of discrimination. (14a).

The court of appeals upheld the decision of the district

court to award judgment as a matter of law dismissing

Ash’s claim. (15a). With regard to Hithon’s claim, the

panel concluded that there was sufficient evidence to

support the jury verdict, because Hatley had interviewed

Hithon for one of the vacancies only after Hatley had

actually offered the job to King and after King had ac-

cepted it. (16a). The appellate court upheld the trial court’s

actions in granting Tyson a new trial with regard to

Hithon’s claim. (16a). Petitioners filed a timely petition for

rehearing in the Eleventh Circuit. That petition was

denied on June 23, 2005.

This Court granted a petition for writ of certiorari,

and in a per curiam decision overturned the Eleventh

Circuit. Ash v. Tyson Foods, Inc., 126 8. Ct. 1195, __ US.

___ (2006). With regard to evidence that a discrimination

plaintiff had superior qualifications, this Court rejected

the Eleventh Circuit’s “slap in the face” standard as

“unhelpful and imprecise.” 126 S. Ct. at 1197. The Court

emphasized that “qualifications evidence may suffice, at

least in some circumstances, to show pretext,” 126 S. Ct.

at 1197; the petition had demonstrated that the Eleventh

Circuit’s “slap in the face” standard was so stringent that

it had never been satisfied in any appellate or district

court decision in that circuit.” This Court noted that the

circuit courts had adopted conflicting standards for evalu-

ating qualifications evidence, but expressly did not under-

take to resolve that conflict. Rather, the Court remanded

the case to the Eleventh Circuit with instructions to utilize

instead a standard that would ensure “consistent results.”

126 S. Ct. at 1198. —

This Court also overturned the Eleventh Circuit’s

holding that “boy,” as a form of address to an adult Afri-

can-American man, could never as a matter of law be

evidence of discriminatory animus. The Court held that

this form of address could be “probative of bias,” and

identified several factors which should be considered in

determining “(t]he speaker’s meaning.” 126 S. Ct. 1197.

On remand the Eleventh Circuit insisted, despite this

Court’s decision, that the evidence in this case still was

insufficient as a matter of law to support the jury’s finding

of discrimination. The court of appeals held that proof that

a plaintiff was better qualified than the person promoted

to a disputed position could not support a finding of

discrimination unless the differences in ability were so

enormous “that no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate

selected over the plaintiff for the job in question.” (6a). The

court of appeals held that this stringent standard was not

satisfied. With regard to the repeated instances in which

‘* The petition noted that that standard had been applied in 10

Eleventh Circuit decisions and in 34 decisions by district courts within

that circuit. In every case the court concluded that the standard had not

been satisfied. Petition for Writ of Certiorari, Ash v. Tyson Foods, Inc.,

No. 05-379, 11-12. .

the African-American plaintiffs were addressed as “boy,”

the Eleventh Circuit again insisted that this classic racial

slur could not support a finding of racial discrimination.

(5a).

The court of appeals denied a timely petition for

rehearing.

REASONS FOR GRANTING THE WRIT

I. THERE IS A WIDESPREAD CONFLICT AMONG

THE CIRCUIT COURTS REGARDING WHEN,

OR INDEED WHETHER, EVIDENCE OF COM-

PARATIVE QUALIFICATIONS CAN BE UTIL-

IZED TO PROVE INVIDIOUS DISCRIMINATION

IN EMPLOYMENT

This case presents the inter-circuit conflict that was

recognized, but that expressly was not resolved, by this

Court’s February 2006 decision in the instant case. There

remains a widespread inter-circuit conflict regarding

when, and indeed whether, a plaintiff alleging discrimina-

tion in promotion or hiring can prove invidious discrimina-

tion by showing that he or she was more qualified than the

person selected for the position in question. This Court’s

February 2006 decision observed that in addition to the

“slap in the face” standard disapproved in that opinion,

“(flederal courts ... have articulated various other stan-

dards” for evaluating such qualifications evidence. 126

S. Ct. at 1197.

The Court’s decision did not resolve that conflict;

rather, it explained “[t]his is not the occasion to define

more precisely what standard should govern pretext

claims based on superior qualifications.” 126 S.Ct. at

1198. In light of the Eleventh Circuit’s intransigent re-

sponse to this Court’s February 2006 decision, the instant

case provides an exceptionally appropriate “occasion to

define more precisely” the standard governing this manner

of proof.

The inter-circuit conflict recognized by this Court in

Ash is well-established and clearly defined. The Eleventh

and Fifth Circuits apply a “no reasonable person” stan-

dard. In both circuits a substantial body of caselaw makes

clear that this standard can virtually never be met. No

appellate or district court decision in the Eleventh Circuit

has ever found that a plaintiff’s evidence satisfied the “no

reasonable person” standard. The Seventh Circuit applies

the “no reasonable person” standard more narrowly,

limiting it to cases in which the plaintiff has no other

evidence of unlawful intent; even in the Seventh Circuit,

however, when the “no reasonable person” standard does

apply, evidence of superior qualifications is always re-

jected. Conversely, the Ninth Circuit does not limit the use

of qualifications evidence, and has repeatedly permitted a

plaintiff to rely on such evidence to defeat summary

judgment or to sustain a jury verdict. The Third, Fourth

and District of Columbia Circuits apply intermediate

standards, permitting reliance on evidence of comparative

qualifications in some but not all cases.

The Eleventh Circuit first articulated the “no reason-

able person” standard in 2000, and has now applied it ina

dozen decisions involving a variety of federal employment

discrimination cases, including claims under Title VII of

the 1964 Civil Rights Act, 42 U.S.C. section 1981, the Age

Discrimination in Employment Act, and the Fourteenth

Amendment.” Under that standard, evidence that a

* Taylor v. Roche, 2006 WL 2613659, at *1 (11th Cir. Sept. 12,

2006) (Title VII); Higgins v. Tyson Foods, Inc., 2006 WL 2466178, at *2

(Continued on following page)

plaintiff was better qualified cannot be relied on to prove

intentional discrimination unless the differences in quali-

fications were so vast “that no reasonable person, in the

exercise of impartial judgment, could have chosen the

candidate selected over the plaintiff for the job in ques-

tion.” (6a). The Eleventh Circuit does not claim that this

“no reasonable person” standard is substantively different

than the “slap in the face” standard rejected by this Court

in Ash. To the contrary, the Eleventh Circuit has repeat-

edly held that the “no reasonable person” standard is

identical to the rejected “slap in the face” standard.’ The

(llth Cir. Aug. 28, 2006) (Title VII and the Age Discrimination in

Employment Act), Milledge v. Rayonier, Inc., 2006 WL 2257949, at *2

(11th Cir. Aug. 8, 2006) (Title VII); Ash v. Tyson Foods, Inc., 2006 WL

2219749, at *3 (11th Cir. Aug. 2, 2006) (Title VII and section 1981);

Hubbard v. M & H Valve Co., 2006 WL 1410147, at *1 (1ith Cir. May

22, 2006) (Title VII and section 1981); Tippier v. Spacelabs Medical,

Inc., 2006 WL 1130809, at *3 (11th Cir. April 27, 2006) (Title VII and

section 1981); Brooks v. County Commission of Jefferson County, Ala.,

446 F.3d 1160, 1163-64 (11th Cir. 2006) (Title VIL); Watkins v. Hunts-

ville, Ala., 176 Fed. Appx. 955, 956 (11th Cir. 2006) (Title VII); Hithon v.

Tyson Foods, Inc., 144 Fed. Appx. 795, 800 (11th Cir. 2005) (Title VII

and section 1981); Cooper v. Southern Co., 390 F.3d 695, 732-33 (11th

Cir. 2004) (Title VII and section 1981); Lee v. GTE Florida, Inc., 226

F.3d 1249, 1254-55 (llth Cir. 2000) (Title VII) (overturning jury

verdict); Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1340-41

(11th Cir. 2000) (Section 1981 and the Fourteenth Amendment).

" In Higgins v. Tyson Foods, Inc., 2006 WL 2466178, at *2 (11th

Cir. Aug. 28, 2006), the Eleventh Circuit approved a district court

decision that had “equated the language” of the “slap in the face”

standard with the “no reasonable person” standard.

The Eleventh Circuit’s seminal decision in Cooper v. Southern Co.

390 F.3d 695 (llth Cir. 2004), explained that the requirement of

evidence

“so apparent as virtually to jump off the page and slap you

in the face”... “should be understood to mean that dispari-

ties in qualifications must be of such weight and signifi-

cance that no reasonable person, in the exercise of impartial

(Continued on following page)

Eleventh Circuit nonetheless insists that its adherence to

the “no reasonable person” standard was “approved” by

this very Court in Ash itself.”

The “no reasonable person” standard, avowedly

stringent in theory, is fatal in practice. In the 12 Eleventh

Circuit decisions applying this standard, no plaintiff ever

succeeded in making the requisite showing. The court of

appeals has applied that standard both to direct summary

judgment for defendants and, as here, to overturn jury

verdicts. Equally striking is the pattern of decisions

judgment, could have chosen the candidate selected over the

plaintiff for the job in question.”

207 F.3d at 1340 (quoting Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268

(11th Cir. 2001) and Lee v. GTE Florida, Inc. , 226 F.3d 1249, 1254 (11th

Cir. 2000)) (emphasis added). The Eleventh Circuit reiterated that the

two standards were identical in Alexander v. Fulton County, Ga., 207

F.3d 1303 (11th Cir. 2000) and Lee v. GTE Florida, Inc., 226 F.3d 1249,

1254 (11th Cir. 2000).

In addition, in the period prior to this Court’s decision in Ash, eight

district court decisions in the Eleventh Circuit had expressed their

understanding that the “slap in the face” and “no reasonable person”

standards were identical. Twilley v. Burlington Northern, etc. Rwy. Co.,

351 F. Supp. 2d 1299, 1307 (N.D.Ala. 2004); Harrington v. The Chil

dren’s Psychiatric Center, 2003 WL 23356396, at *10 (S.D.Fla. Dec. 9,

2006); Dorrego v. Public Health Trust of Miami Dade County, 293

F. Supp. 2d 1274, 1283 (S.D.Fla. 2003), Green v. Miami-Dade County,

2003 WL 22331877, at *8 (S.D.Fla. Sept. 9, 2003); Rogers-Libert v.

Miami-Dade County, 184 F. Supp. 2d 1273, 1280 (S.D.Fla. 2001);

Dancy-Pratt v. The School Board of Miami-Dade County, 2001 WL

1922063, at *7 (S.D.Fla. Dec. 13, 2001); Humphrey v. Potter, 162

F. Supp. 2d 1354, 1363 (S.D.Fla. 2001), Taylor v. Williams, 2000 WL

1844698, at *3 (S.D.Ala Oct. 30, 2000).

* Taylor v. Roche, 2006 WL 2613659, at *1 (11th Cir. Sept. 12,

2006) (describing the “no reasonable person” standard “as approved by

Ash vu. Tyson Foods, Inc.”); Brooks v. County Commission of Jefferson

County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (describing Ash as

“approving of this language” stating the “no reasonable person”

standard).

among district court decisions in the Eleventh Circuit.

Since that circuit fashioned the “no reasonable person”

standard in 2000, it has been applied in 28 district court

decisions reproduced in Westlaw. In every one of those

cases, the district judge held that the plaintiff had failed to

show that the disparities in qualifications were so great

that no reasonable person could have chosen the candidate

selected over the plaintiff." This Court has repeatedly held

that discrimination plaintiffs should be permitted to rely

on evidence of greater qualifications to prove discrimina-

tion. Ash, 126 S. Ct. at 1197; Patterson v. McLean Credit

Union, 491 U.S. 164, 187-88 (1989); Texas Dept. of Com-

munity Affairs v. Burdine, 450 U.S. 248, 259 (1981). The

Eleventh Circuit’s utilization of a standard which invaria-

bly precludes reliance on such evidence is inconsistent

with this Court’s decisions in Ash, Patterson, and Burdine.

In the Eleventh Circuit it is for judges, not juries, to

decide whether evidence of qualification disparities satis-

fies the “no reasonable person” standard. Thus in the

instant case, the dispositive finding made by the Eleventh

Circuit panel was that “we conclude that the plaintiffs did

not meet their burden . . . to show” that the “no reasonable

person” standard had been met. (7a) (emphasis added).”

’* We set forth a list of those district court decisions in an Appendix

to the petition.

*® See Higgins v. Tyson Foods, Inc., 2006 WL 2466178, at *2 (“the

district court concluded that the plaintiff has simply failed to meet that

test. We agree”), Milledge v. Rayonier, Inc., 2006 WL 2257949, at *2

(“[the plaintiff’s] account ... may show that he was qualified for the

position, but not that [the no reasonable person standard was met}]”);

Hithon v. Tyson Foods, Inc., 144 Fed. Appx. 795, 800 (plaintiff “failed to

establish” that the no reasonable person standard was met).

The “no reasonable person” standard is also well

established in the Fifth Circuit. From the outset the Fifth

Circuit (like the Eleventh Circuit) has held that the “no

reasonable person” standard “should be understood to

mean” the same thing as the “slap in the face” standard,

the very standard rejected by this Court in Ash v. Tyson’s

Food.” In the Fifth Circuit it also is for the courts, not the

trier of fact, to decide whether the differences in qualifica-

tion were so great that no reasonable person could have

rejected the plaintiff in favor of the candidate chosen.”

That circuit recognizes that the “no reasonable person”

requirement is an “extremely high” standard. Roy uv.

United States Department of Agriculture, 115 Fed. Appx.

198, 201 (5th Cir. 2004). In practice the standard is almost

* Deines v. Texas Department of Protective and Regulatory Ser-

vices, 164 F.3d 277, 280-81 (5th Cir. 1999):

The phrase “jump off the page and slap [you] in the face” is

simply a colloquial expression that we have utilized to bring

some degree of understanding to the level of disparity in

qualifications required to create an inference of intentional

discrimination. In its essence, the phrase should be under-

stood 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.

The “no reasonable person” formulation originated in Deines.

* See, e.g., Runnels v. Texas Children’s Hospital Select Plan, 167

Fed. Appx. 377, 383 (5th Cir. 2006) (plaintiffs “have failed to show” that

they were so much better qualified as to meet the “no reasonable

person” standard); Roy v. United States Department of Agriculture, 115

Fed. Appx. 198, 201 (5th Cir. 2004) (the plaintiff’s evidence “does not

satisfy” the “no reasonable person” standard); Reynolds v. City of

Dallas, 2004 WL 893425, at *8 (N.D.Tex. April 23, 2004) (“the Court

does not find that Piaintiff’s qualifications were so disparately superior

to [the successful candidates’) that no reasonable person, in the exercise

of impartial judgment, could have chosen them.”).

impossibly high. No appellate decision in the Fifth Circuit

has ever found that a plaintiff had met that standard.”

Among the 31 district court decisions in the Fifth Circuit

applying the “no reasonable person” standard,” there are

only two highly unusual cases in which a district judge has

ever found that that standard had been satisfied.

The Ninth Circuit, at the other end of the spectrum,

imposes no such limitations on the use of evidence of com-

parative qualifications. “In Odima [v. Westin Tucson Hotel,

53 F.3d 1484 (9th Cir. 1995)], we held that the plaintiff's

superior qualifications standing alone were enough to prove

pretext.” Raad v. Fairbanks North Star Borough School

District, 323 F.3d 1185, 1194 (9th Cir. 2003) (emphasis in

original). Indeed, in the Ninth Circuit even evidence that the

plaintiff was equally qualified as the successful candidate is

sufficient to support a finding of discrimination. Margolis v.

Tektronix, Inc., 44 Fed. Appx. 138, 141-42 (9th Cir. 2002)

* Runnels v. Texas Children’s Hospital Select Plan, 167 Fed. Appx.

377, 383 (5th Cir, 2006) (section 1981); Roy v. United States Department

of Agriculture, 115 Fed. Appx. 198, 201 (5th Cir. 2004) (Title VII); Cook

v. Mississippi Dept. of Human Services, 108 Fed. Appx. 852, 860 (5th

Cir. 2004) (Title VII and section 1981); Barnes v. United States Depart-

ment of the Navy, 95 Fed. Appx. 46, 50 (5th Cir. 2004) (Title VII and the

ADEA), Wright v. Columbia Women & Children’s Hospital, 2002 WL

495325, text at n.11 (5th Cir. May 18, 2002) (ADEA), Celestine uv.

Petroleos de Venezuela, 266 F.3d 343, 357 (5th Cir, 2001) (Title VII).

“ A list of those cases is set out in an Appendix to this petition.

In Chustz v. City of New Orleans, 2002 WL 31556353, at *10

(E.D.La. Nov. 15, 2002), the successful candidate for a high level

administrative post (as the employer well knew) was addicted to crack

cocaine, had been fired from his previous position for drug abuse, and

did not meet the minimum requirements for the new post. In Lall v,

Perot Systems Corp., 2004 WL 884438, at *7 (W.D.Tex. April 23, 2004),

all four of the original founders of the business unit in question

executed affidavits stating that plaintiff was the best qualified candi-

date.

(“Margolis’ principal argument is that ... she is more

qualified than one or more male managers. ... Margolis’

evidence on this point, if believed, is adequate ... to

survive summary judgment. A jury could find that Tek-

tronix(’s explanation] is a pretext for discrimination if it

believes that Margolis was, in fact, more (or at least as)

qualified.”); Tucevich v. State of Nevada, 1999 WL 62735,

at *1 (9th Cir. Jan. 22, 1999) (reversing award of summary

judgment in part because “the evidence indicates that

Tucevich was equally qualified, if not more qualified, than

the individuals that defendant hired.”) Unlike the Elev-

enth Circuit, which asserts that this Court’s decision in

Ash approved the “no reasonable person” bar to such

evidence, the Ninth Circuit cites Ash for the contrary

proposition that qualifications evidence “may suffice .. . to

show pretext.” Cornwell v. Electra Central Credit Union,

439 F.3d 1018, 1033 (9th Cir. 2006).

This sharp difference in the standards applied to

evidence of comparative qualifications is clearly outcome

determinative. The Ninth Circuit has repeatedly done

something that the Eleventh and Fifth Circuits have

invariably refused to do under the “no reasonable person”

standard — upheld a discrimination claim because the

plaintiff had offered evidence of his or her greater qualifi-

cations. In seven cases the Ninth Circuit has relied on

such evidence to deny summary judgment to a defendant

employer. Cornwell v. Electra Central Credit Union, 439

F.3d at 1033-34 (9th Cir. 2006) (Title VII) (“a reasonable

jury might ... view the disparity between [the plaintiff’s]

management experience and [that of the person treated

more favorably] as proof that the Defendant’s explanation

. was a pretext for race discrimination.”); Margolis v.

Tektronix, Inc., supra; Haas v. Betz Laboratories, Inc.,

1999 WL 451206, at *2 (9th Cir. June 23, 1999) (“Haas

also has established pretext indirectly by offering evidence

that the chosen applicant ... was not the most qualified

applicant for the job.”); Tucevich v. State of Nevada, supra;

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.

1998) (“Facts tending to show that the chosen applicant

may not have been the best person for the job are proba-

tive as they ‘suggest that [the defendant’s explanation]

may not have been the real reason for choosing [the

applicant selected] over the [plaintiff].’”) (quoting Lindahl

v. Air France, 930 F.2d 1434, 1439 (9th Cir. 1991)); Tho-

mas v. California State Department of Corrections, 1992

WL 197414, at *3 (9th Cir. Aug. 18, 1992) (“we find that

... a rational trier of fact could conclude that Thomas was

more qualified [than the person hired] and that the De-

partment’s articulated reasons for rejecting him were

pretextual.”); Lindahl v. Air France, 930 F.2d 1434, 1439

(9th Cir. 1991) (“All of these facts tend to show that [the

person promoted] may not have been the best person to

lead the group, and they therefore suggest that leadership

ability may not have been the real reasons for choosing

[him] over Lindahl.”).

In the Ninth Circuit, the degree to which the qualifi-

cations of the plaintiff exceed those of the successful

applicant are matters for consideration by the trier of fact,

not a possible basis for summary judgment or judgment as

a matter of law. Thomas v. California State Department of

Corrections, supra. “The closer the qualifications of the

candidates, the less weight the [trier of fact] should give to

perceived differences in deciding whether the proffered

explanations were pretextual.” Odima v. Westin Tucson

Hotel Co., 991 F.2d 585, 602 (9th Cir. 1993) (emphasis

added).””

The Sixth Circuit in Jenkins v. Nashville Public

Radio, 106 Fed. Appx. 991 (6th Cir. 2004), explained that

This circuit has never adopted the [Fifth Circuit]

requirement that in order to raise a genuine is-

sue as to whether the plaintiff was rejected be-

cause of an improper motive rather than because

of the exercise of discretionary business judg-

ment, the plaintiff must demonstrate qualifica-

tions that are “vastly — or even clearly” greater

than those of the successful applicant. And we

cannot readily reconcile [such a requirement]

with the well-established principle of Burdine

that “(t]he fact that a court may think that the

employer misjudged the qualifications of the

applicants does not in itself expose him to Title

VII liability, although this may be probative of

whether the employer’s reasons are pretexts for

discrimination.” Texas Dept. of Community Af-

fairs v. Burdine, 450 U.S. 248, 259 (1981).

106 Fed. Appx. at 994. Relying on evidence that an em-

ployment discrimination plaintiff was better qualified, the

Sixth Circuit overturned district court decisions awarding

summary judgment to the defendant employers in Jen-

kins, in Zambetti v. Cuyahoga Community College, 314

F.3d 249, 259 (6th Cir. 2002), and in King v. Healthrider,

Inc., 1999 WL 825122 (6th Cir. Oct. 8, 1999). In Carberry v.

Monarch Marking Systems, Inc., 30 Fed. Appx. 389, 392 (6th

Cir. 2002), the Sixth Circuit upheld a jury’s finding of dis-

crimination largely because of evidence that the plaintiff was

** Because the claims in Odima had been determined at a bench

trial, the Ninth Circuit referred in this instance to evaluation of the

weight of the evidence by the trial court.

the better qualified applicant. And in Glenn’s Trucking Co.

v. NLRB, 298 F.3d 502, 506 (6th Cir. 2002), the Sixth

Circuit upheld an NLRB finding of discrimination against

union members in light of evidence that “the discrimina-

tees appear to be more qualified than those individuals

who were hired.”

The District of Columbia Circuit has adopted an

intermediate standard. In a sharply divided en banc

decision, that court of appeals held that

lilf a factfinder can conclude that a reasonable

employer could have found the plaintiff to be sig-

nificantly better qualified for the job, but this

employer did not, the factfinder can legitimately

infer that the employer consciously selected a

less-qualified candidate — something employers

do not usually do, unless some other strong con-

sideration, such as discrimination, enters into

the picture.

Aka v. Washington Hosp. Center, 156 F.3d 1284, 1294 (D.C.

Cir. 1998) (en banc) (emphasis added). This standard is

more demanding than that in the Ninth Circuit (which

does not require that the difference in qualification be

significant) but less demanding than that in the Eleventh

and Fifth Circuits (which require differences in qualifica-

tions to be overwhelming, and which insist that the court,

not the factfinder, should determine if that standard is

met.) In both Aka and Lathram v. Snow, 336 F.3d 1085,

1092-93 (D.C.Cir. 2003), the District of Columbia Circuit

relied on evidence regarding comparative qualifications to

overturn decisions awarding summary judgment to defen-

dants. On the other hand, that circuit has upheld summary

judgment for employers where it concluded that a reasonable

jury could not find that the plaintiff was “significantly better

qualified.” Carter v. George Washington University, 387 F.3d

872, 881-82 (D.C.Cir. 2004); Stewart v. Ashcroft, 352 F.3d

422, 429-30 (D.C.Cir. 2003). |

The Fourth Circuit also applies an intermediate

standard, requiring that the qualifications evidence be

sufficient to permit a finding that the plaintiff was “dis-

cernibly better qualified” Heiko v. Colombo Savings Bank,

F’'S.B., 434 F.3d 249, 261 (4th Cir. 2006), or “plainly supe-

rior.” Dennis v. Columbia Colleton Medical Center, Inc., 290

F.3d 639, 649 n.4 (4th Cir. 2002). The Fourth Circuit relied

on such qualifications evidence to uphold a jury’s finding of

discrimination in Dennis, and to overturn the award of

summary judgment in Heiko.

In Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997),

the Third Circuit relied on evidence of comparative quali-

fications to deny summary judgment to an employer; the

court divided sharply, however, regarding what standard

should be applied. The majority held that the plaintiff

could rely on evidence that she was better qualified than

the successful applicant (110 F.3d at 995-97), while the

dissenting judge would have insisted on evidence that “the

qualifications were extremely disproportionate.” 110 F.3d

at 1000 (Alito, J., dissenting). The majority objected that

the standard proposed in the dissent would “immunize an

employer from the reach of Title VII,” 110 F.3d at 993, but

then Judge Alito objected that the majority’s holding

would bring about “an unwarranted extension of the anti-

discrimination laws.” 110 F.3d at 1002.

The Seventh Circuit has adopted a hybrid approach.

Where a plaintiff relies solely on evidence of comparative

qualifications, the Seventh Circuit utilizes the Eleventh

Circuit “no reasonable person” standard.” On the other

*° See cases cited at n.28.

hand, where the plaintiff has other evidence (albeit evi-

dence not by itself sufficient to support a finding of

discrimination), the Seventh Circuit uses the Ninth

Circuit standard, permitting reliance without limitation

on evidence of comparative qualifications.”

In the Seventh Circuit, as elsewhere, the standard

_ utilized is of conclusive importance. In the Seventh Circuit

there are 9 appellate” and 24 district court decisions”

applying the “no reasonable person” standard. In every

one of these 33 cases the court held that the plaintiff’s

evidence could not satisfy that standard. On the other

hand, in all of the cases in the Seventh Circuit applied the

less demanding Ninth Circuit standard, the court con-

cluded that the plaintiff’s evidence was sufficient to

withstand summary judgment.”

” Harvey v. Office of Banks and Real Estate, 377 F.3d 698, 712-13

(7th Cir. 2004) (Title VII and section 1981); David v. Caterpillar, Inc.,

324 F.3d 851, 861-63 (7th Cir. 2003) (Title VII).

* Sublett v. John Wiley & Sons, Inc., 2006 WL 2613509, at *7 (7th

Cir. Sept. 13, 2006) (Title VII); Mlynczak v. Bodman, 442 F.3d 1050,

1060 (7th Cir. 2006) (Title VII); Farrell v. Butler University, 421 F.3d

609, 615-16 (7th Cir. 2005) (Title VII); Cichon v. Exelon Generation Co.,

L.L.C., 401 F.3d 803, 813 (7th Cir. 2005) (Fair Labor Standards Act);

Jordan v. City of Gary, Indiana, 396 F.3d 825, 834 (7th Cir. 2005) (Title

VII and ADEA); Reed v. Lawrence Chevrolet, Inc., 108 F.3d 393, 395-96

(7th Cir. 2004) (Title VII); Reed v. Manteno School Dist. No. 5, 59 Fed.

Appx. 868, 871-72 (7th Cir. 2003) (Title VII and ADEA); Bernales v.

Cook, 37 Fed. Appx. 792, 795 (7th Cir. 2002) (Title VII); Millbrook v.

IBP Inc., 280 F.3d 1169, 1182 (7th Cir. 2002) (Title VID).

* A list of those decisions is set forth in an appendix to this

petition.

® Harvey v. Office of Banks and Real Estate, supra; David v.

Caterpillar, Inc., supra; Lust v. Sealy, Inc., 277 F. Supp. 2d 973, 988

(W.D.Wis. 2003) (Title VII); Kozlowski v. Fry, 238 F. Supp. 2d 966, 1012

(N.D.Ill. 2002) (Title VID.

The question presented is of manifest importance. In

the Eleventh, Fifth and Seventh Circuits there are 110

decisions applying the “no reasonable person” standard.

The total number of discrimination cases in those three

circuits involving qualifications evidence is substantially

higher; in the Eleventh and Fifth Circuits, for example,

there have also been numerous other decisions applying

the semantically distinct but substantively identical “slap

in the face” standard.” Cases involving this type of evi-

dence also arise with considerable frequency in the other

circuits. In the absence of a decision by this Court resolv-

ing the question left open in its February 2006 decision in

the instant case, the large number of claims resting on

such evidence will continue to be decided differently

depending on the circuit in which an action is filed. Certio-

rari should be granted to resolve that conflict.

Il. THE DECISION OF THE ELEVENTH CIRCUIT

CONFLICTS WITH DECISIONS OF THIS COURT

AND OF NUMEROUS COURTS OF APPEALS

REGARDING THE EVALUATION OF BIASED

REMARKS IN DISCRIMINATION CASES

In its 2005 decision, the Eleventh Circuit held that

addressing an adult African-American man as “boy”

(unlike “black boy”) could never as a matter of law be

evidence of racial animus. (14a). This Court overturned

that per se rule. In Ash this Court held that the signifi-

cance of such a remark would depend on “(t]he speaker’s

meaning,” and listed a number of factors to be considered

* Petition for Writ of Certiorari, Ash v. Tyson Foods, Inc., 126 S.

Ct. 1195 (2006), No. 05-379, pp. 10-14 (listing 90 “slap in the face” cases

in the Fifth and Eleventh Circuits).

in determining the speaker’s intent. 126 S. Ct. at 1197. On

remand, however, the Eleventh Circuit responded with a

flurry of new objections to the evidence of these potentially

damning statements. In its determination to find some

reason to again overturn the jury’s finding of discrimina-

tion, the court of appeals flatly disregarded several con-

trolling decisions of this Court, including this Court’s

February 2006 decision in the instant case.

First, the Eleventh Circuit held that the repeated use

of the term “boy” was not probative because the remarks

were “ambiguous.” (5a). But in Ash this Court itself had

already noted that very ambiguity, expressly recognizing

that this form of address does not invariably have the

same meaning. “Although it is true the disputed word will

not always be evidence of raciai animus, it does not follow

that the term, standing alone, is always benign.” Ash, 126

S. Ct. at 1197. On remand the court of appeals has now

held that that very ambiguity precludes a trier of fact from

relying on evidence that the term “boy” was used to

address African-American men. That is emphatically

contrary to this Court’s holding in Ash that the trier of fact

is to resolve that ambiguity and by so doing is to ascertain

“(t]he speaker’s meaning.” Jd. By holding that the ambigu-

ity in “boy” (unlike “black boy”) precludes reliance on this

evidence, the Eleventh Circuit has resuscitated the very

rule rejected by this Court in Ash.

Second, in making its determination that the plant

manager had no racial intent in using the term “boy,” the

Eleventh Circuit objected that the factors set forth in this

Court’s decision in Ash for interpreting that usage were

not “in the record.” (5a). But two of the factors identified

by this Court, “inflection” and “tone of voice,” by their very

nature would never be reflected in a cold transcript. 126

S. Ct. at 1197. Only the trier of fact, unlike an appellate

court, would “be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener’s under-

standing of and belief in what is said.” Anderson v. City of

Bessemer City, 470 U.S. 564, 575 (1985). At the trial in the

instant case, a witness reproduced for the jury the tone

and inflection with which the term “boy” had been used.”

The Eleventh Circuit, by insisting that the interpretation

of allegedly discriminatory remarks be made by an appel-

late court based solely on the content of the transcript,

effectively refused to comply with this Court’s decision in

Ash that inflection and tone of voice should be considered

in determining a speaker’s meaning.”

Third, the Eleventh Circuit objected that the “boy”

remarks, even if they did indicate “general racial bias” on

the part of the plant manager, were nonetheless legally

irrelevant because the remarks were not made at the time

of the promotion decisions and, in the court’s view, were

for that reason “totally unrelated to the promotions at

issue.” (5a). In Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000), this Court emphatically rejected

that very basis for disregarding biased remarks. In Reeves,

as here, the court of appeals held that evidence of biased

remarks could not support a jury verdict of discrimination

because “these comments were not made in the direct

context of Reeves’s termination.” 197 F.3d 688, 693 (5th

Cir. 1999). This Court held, to the contrary, that such

* See n.4, supra.

*® Cf. Anderson v. City of Bessemer City, 470 U.S. at 579 (“it is easy

to imagine that the tone of voice with which the witness related her

comment... might have conclusively established that the remark was

a facetious one.”)

remarks were probative even if not made in connection

with the disputed employment decision.

In holding that the record contained insufficient

evidence to sustain the jury’s verdict, the Court

of Appeals misapplied the standard of review dic-

tated by Rule 50.... The court... failed to draw

all reasonable inferences in favor of petitioner.

For instance, while acknowledging “the poten-

tially damning nature” of [a decisionmaker’s]

age-related comments, the court discounted them

on the ground that they “were not made in the

direct context of Reeves’s termination.”

530 U.S. at 162.

In the wake of Reeves, other circuits have correctly

insisted that it is for the trier of fact to evaluate the type

of evidence which the Eleventh Circuit insists can never

be probative. In Russell v. McKinney Hospital Venture, 235

F.3d 219 (5th Cir. 2000), the Fifth Circuit explained:

In light of the Supreme Court’s admonition in

Reeves, our pre-Reeves jurisprudence regarding

so-called “stray remarks” must be viewed cau-

tiously.... Age-related remarks are appropri-

ately taken into account when analyzing the

evidence supporting a jury verdict (even if not in

the direct context of the decision... )

235 F.3d at 229." In Plotke v. White, 405 F.3d 1092 (10th

Cir. 2005), the Tenth Circuit held:

“ See Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir.

2003) (“Post-Reeves, this court has taken a more ‘cautious’ view of the

stray remark doctrine... . Age-related remarks ‘are appropriately taken

into account when analyzing the evidence supporting the jury’s verdict,’

even when the comment is not in the direct context of the termina-

tion... .”) (quoting Russell), Hooker v. Victoria’s Secret Stores, Inc., 2001

WL 1692436 (5th Cir. Nov. 21, 2001) (“{IJn light of the Supreme Court’s

(Continued on following page)

The Supreme Court has emphasized that courts

should not reject a plaintiff’s evidence of addi-

tional circumstantial gender-based comments .. .

because they ‘were not made in the direct context

of [the plaintiff’s termination.’ Reeves, 350 U.S.

at 151-53.... Accordingly, we have held that

gender-based comments by a plaintiff’s supervi-

sor can be relevant evidence of pretext ... even

when such comments were not directly limited to

the termination decision.

405 F.3d at 1107. Both before and after Reeves that Ninth

Circuit has recognized that biased remarks are probative

of pretext even though the remarks were not made in

connection with the disputed employment decision, or even

about the plaintiff. Chuang v. University of California

Davis, Bd. of Trustees, 225 F.3d 1115, 1128 (9th Cir. 2000)

(the supervisor’s “remark establishes discriminatory

intent even though it was uttered during consideration of

different Asian-American’s potential employment”) (em-

phasis added) (citing Reeves); Cardova v. State Farm Ins.

Companies, 124 F.3d 1145, 1149 (9th Cir. 1997) (“if such

remarks were indeed made, they could be proof of dis-

crimination against [the plaintiff] despite their reference

to another agent and their utterance after” the employ-

ment decision in dispute) (emphasis added).

Fourth, the Eleventh Circuit on remand made its own

finding of fact that the white plant manager who made the

holding in Reeves. .. . ‘the potentially damning nature of... age-related

comments’ cannot be discounted ‘on the ground that they were not

made in the direct context’ of an adverse employment decision.”)

(quoting Russell), Evans v. City of Bishop, 238 F.3d 586, 591-92 (5th Cir.

2000) (“Reeves emphatically states that requiring evidence of discrimi-

natory animus to be ‘in the direct context’ of the employment decision is

incorrect.”).

remarks did not intend to use the term “boy” with a racial

meaning.

The usages were conversational and as found by

the district court were non-racial in context. ...

The lack of a modifier in the context of the use of

the word “boy” in this case was not essential to

the finding that it was not used racially. ... The

statements ... showed no indication of general

racial bias ... by [the plant manager].

(5a) (Emphasis added).

This Court has made clear, however, that discerning

the intent behind such extra-judicial statements is a

question of fact for the trier of fact, not a question of law

for the courts. Anderson v. City of Bessemer City, 470 U.S.

564 (1985). Whether a speaker intended to use the term

“boy” or some other language in a racial manner is as

much a question of fact as whether an employer intended

to promote or fire a worker because of his or her race.

Thus whether in this case the manager intended the term

“boy” in a racial manner was, like the question of racial

motive in promotions, a matter to be resolved by the jury.

In Anderson a finding of discrimination in hiring

turned in part on whether a particular statement that had

been made during a critical job interview was intended by

the speaker to be serious or facetious. Following a bench

trial, the district judge concluded that the remark was

facetious, and relied on that finding in concluding that

intentional discrimination had occurred. The Fourth

Circuit reinterpreted the intent behind that remark,

concluded that the remark was not facetious, and there-

fore reversed the find of discrimination. This Court

unanimously reinstated the discrimination finding, ex-

plaining that the appellate court had erred in substituting

its own finding regarding the meaning of the remark in

question for the conclusions of the trier of fact. “[T]he error

of the Court of Appeals was its failure to give due regard to

the ability of the District Court to interpret and discern

the credibility of oral testimony.” 470 U.S. at 577.

In the wake of Anderson, numerous courts of appeals

— unlike the Eleventh Circuit in this case — have recog-

nized that the interpretation of extra-judicial statements

that could indicate possible bias is a matter for the trier of

fact. Phelan v. Cook County, 463 F.3d 773, 782 (7th Cir.

2006) (“To the extent that the discriminatory nature of...

these remarks is ambiguous, we note that ‘the task of

disambiguating ambiguous utterances is for trial, not for

summary judgment.’”) (citing Shager v. Upjohn Co., 913

F.3d 398, 402 (7th Cir. 1990)); EEOC v. Heartway Corp.,

2006 WL 3030562, at *8 (10th Cir. Oct. 26, 2006) (“Al-

though this is arguably an ambiguous statement, a jury

could reasonably find that [the employee] was being fired

because fof her disability]”); Thanonsingh v. Board of

Educ., 462 F.3d 762, 781-82 (7th Cir. 2006) (“the statement

could be interpreted reasonably by a juror as probative

evidence that [the speaker] harbored animus against

persons for whom English is a second language.”); Green v.

City of New York, 2006 WL 2846473, at *10 (2d Cir. Oct. 5,

2006) (“the district court, on summary judgment, should

have resolved the ambiguity against [the defendant]”);

Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990)

(the district judge who improperly awarded summary

judgment “considered the comments on age attributed to

{the supervisor] to be ambiguous. That they were. But the

task of disambiguating ambiguous utterances is for trial,

not for summary judgment.”); Siegel v. Alpha Wire Corp.,

894 F.2d 50, 55 (3d Cir. 1990) (“a jury could find that...

that phrase ... indicated bias against older employees. Of

course, a jury could also decide [otherwise] ... but that is

precisely the sort of question that should be left to the

jury.”).

Certiorari should be granted to bring the Eleventh

Circuit into compliance with this Court’s decisions in Ash,

Anderson, and Reeves, and to resolve these inter-circuit

conflicts.

CONCLUSION

For the above reasons, a writ of certiorari should issue

to review the judgment and opinion of the Court of Ap-

peals for the Eleventh Circuit.

Respectfully submitted,

ALICIA K. HAYNES

HAYNES & HAYNES, P.C.

1600 Woodmere Drive

Birmingham, AL 35226

(205) 879-0377

ERIC SCHNAPPER

(Counsel of Record)

School of Law

University of Washington

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

Counsel for Petitioners

2006 WL 2219749

{DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-11695

D.C. Docket No.

96-03257-CV-RRA-M

ANTHONY ASH,

JOHN HITHON,

Plaintiffs-Appellants,

versus

TYSON FOODS, INC.,

a corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Alabama

(August 2, 2006)

ON REMAND FROM THE

UNITED STATES SUPREME COURT

Before DUBINA, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

Appellants Anthony Ash (“Ash”) and John Hithon

(“Hithon”), black males, (collectively “the plaintiffs”)

appeal the district court’s orders (1) granting Tyson Foods,

Inc.’s (“Tyson”) renewed motion for judgment as a matter

of law, pursuant to Fed. R. Civ. P. 50(b), on their 42 U.S.C.

§ 2000e et seg. (“Title VII”) and 42 U.S.C. § 1981 discrimi-

nation claims, and (2) alternatively granting Tyson’s

motion for a new trial, pursuant to Fed. R. Civ. P. 50(c), on

the basis that the jury’s punitive and compensatory

damages were excessive and unsupported by the evidence.

In an unpublished decision, we affirmed the district

court’s alternative grant of a new trial on Hithon’s claims

because there was insufficient evidence to support the

punitive damages award and the compensatory damages

award was excessive, but upheld the court’s dismissal of

Ash’s claims on grounds that he did not prove discrimina-

tion. See Ash v. Tyson Foods, Inc., 129 Fed. Appx. 529 (11th

Cir. 2005), vacated, 126 S. Ct. 1195 (2006). Hithon’s

evidence demonstrated that Supervisor Hatley may not

have interviewed Hithon until after he selected Randy

King (“King”), a white shift manager at an Arkansas plant,

for the position in question. We held this evidence to be

sufficient to permit a jury to decide whether Hithon’s

articulated reasons for not selecting him were a pretext for

race discrimination.

On petition for writ of certiorari, the Supreme Court

of the United States granted the writ, vacated our judg-

ment, and remanded the case for further consideration.

Specifically, the Supreme Court found fault with our

partial reliance on an articulation of the comparative

qualifications standard as one where pretext is shown only

when the disparity in qualifications is so apparent as to

virtually “jump off the page and slap you in the face.” It

also instructed that this court erred by concluding that the

use of “boy” alone is not evidence of racial discrimination

unless accompanied by racial qualifiers when evaluating

whether such references to plaintiffs were evidence of

racial bias. Ash v. Tyson Foods, Inc., 126 S. Ct. 1195

(2006).

The Supreme Court remanded the case to us with

instructions to determine whether these two findings were

essential to our holding and to determine if the standards

written more appropriately would change the ultimate

finding. The Supreme Court specifically cautioned that its

decision should not be read to hold that petitioners’ evi-

dence necessarily showed pretext.

Il.

We review a district court’s grant of a Fed. R. Civ. P.

50(b) renewed motion for judgment as a matter of law de

novo and apply the same standard as the district court.

See Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000).

In reviewing the evidence, we draw all factual inferences

and resolve all credibility determinations in favor of the

non-moving parties, who in this case are Ash and Hithon.

Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344

(11th Cir. 2000). However, “the non-movant must put forth

more than a mere scintilla of evidence suggesting that

reasonable minds could reach differing \ rdicts,” and must

show “[a] substantial conflict in the evidence ... before a

matter will be sent to the jury.” Abe/, 210 F.3d at 1337.

Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge.” Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 150, 120 S. Ct.

2097, 2110, (2000) (citation omitted). “[A] motion for

judgment as a matter of law will be denied only if reason-

able and fair-minded persons in the exercise of impartial

judgment might reach different conclusions.” Abel, 210

F.3d at 1337 (citation and internal quotations omitted).

We review a district court’s grant of a new trial for an

abuse of discretion. F.D.1.C. v. Stahl, 89 F.3d 1510, 1514

(11th Cir. 1996). The district court should grant a motion

for a new trial when

the verdict is against the clear weight of the evi-

dence or. will result in a miscarriage of justice,

even though there may be substantial evidence

which would prevent the direction of a ver-

dict.... Because it is critical that a judge does

not merely substitute his judgment for that of

the jury, new trials should not be granted on evi-

dentiary grounds unless, at a minimum, the ver-

dict is against the great — not merely the greater

~— weight of the evidence.

Lipphardt v. Durango Steakhouse of Brandon, Inc., 267

F.3d 1183, 1186 (llth Cir. 2001) (internal citations and

quotation omitted).

Il.

The Supreme Court held that the word “boy” used

without modification was “not always benign” and could be

evidence of racially discriminatory intent. The Court listed

five non-exclusive factors which may indicate whether the

word is evidence of racial animus — “context, inflection,

tone of voice, local custom and historical usage.” Ash, 126

S. Ct. at 1197.

After reviewing the record, we conclude once again

that the use of “boy” by Hatley was not sufficient, either

alone or with the other evidence, to provide a basis for a

jury reasonably to find that Tyson’s stated reasons for not

promoting the plaintiffs was racial discrimination. The

usages were conversational and as found by the district

court were non-racial in context. But even if somehow

construed as racial, we conclude that the comments were

ambiguous stray remarks not uttered in the context of the

decisions at issue and are not sufficient circumstantial

evidence of bias to provide a reasonable basis for a finding

of racial discrimination in the denial of the promotions.

The lack of a modifier in the context of the use of the word

“boy” in this case was not essential to the finding that it

was not used racially, or in such a context as to evidence

racial bias, in the decisions at issue, even if “boy” is con-

sidered to have general racial implications. The state-

ments were remote in time to the employment decision,

totally unrelated to the promotions at issue, and showed

no indication of general racial bias in the decision making

process at the plant or by Hatley. Moreover, there is

nothing in the record about the remaining factors to

support an inference of racial animus in the use of the

term “boy.” |

There was insufficient evidence of bias in the circum-

stances of this case to overcome the articulated reasons for

Hatley’s decision, which was that the selected applicants

were not associated with the prior poor performance of the

plant, they had demonstrated leadership and management

skills, they had superior recommendations, and they had

experience in the poultry industry at more than one Tyson

plant. The only negative — King’s lack of a college degree —

made him equally, but not less, qualified educationally

than the plaintiffs. Thus, we conclude that the “boy”

comments, with the other evidence presented, do not

provide a reasonable basis for a finding of racial discrimi-

nation in the context of the employment decisions at issue

here.

IV.

In its opinion vacating our judgment, the Supreme

Court instructed that the visual image of words “jumping

off the page to slap you in the face” was unhelpful and

imprecise as an elaboration of the standard for inferring

pretext from superior qualifications. The Court concluded

that “some formulation other than the test ... articulated

... by those words would better insure that the trial

courts reach consistent results,” citing by way of contrast

the articulated standard used in Cooper v. Southern Co.,

390 F.3d 695, 732 (11th Cir. 2004), cert. denied, ___ US.

___, 126 S. Ct. 478 (2005), to-wit: “disparities in qualifica-

tions 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.” Ash, 126 S. Ct. at 1197.

The “jump off the page test” was not essential to this

court’s initial conclusion that the comparative qualifica-

tions evidence did not provide sufficient evidence of

pretext. Since Ash, we have utilized the Cooper standard

to evaluate the level of disparity necessary to constitute

proof of pretext claimed on the basis of comparative

qualifications. See, e.g., Brooks v. County Commission of

Jefferson County, Al, 446 F.3d 1160 (llth 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). In these cases,

comparative qualifications and other alleged indicia of

discrimination (i.e., subjective criteria used by the deci-

sion-maker, plaintiff’s belief that his (or her) qualifica-

tions were superior), were held insufficient for a factfinder

reasonably to find that the decision was not based on the

qualifications of the applicants.

On this record, we conclude that the plaintiffs did not

meet their burden under Cooper to show that the dispari-

ties between their qualifications and the qualifications of

King and Dade were “of such weight and significance that

no reasonable person, in the exercise of impartial judg-

ment, could have chosen the candidate selected over the

plaintiff for the job in question.” Cooper, 390 F.2d at 732.

After applying the above standards, we reinstate the

previous holdings of our decision. We affirm the district

court’s grant of judgment as a matter of law in favor of

Tyson on Ash’s discrimination claims. We reverse the

district court’s grant of judgment as a matter of law in

favor of Tyson on Hithon’s discrimination claims but, with

respect to Hithon, we affirm the district court’s order

alternatively granting a new trial because there was

insufficient evidence to support the jury’s punitive dam-

ages award, and the compensatory damages award was

excessive. We remand this case to the district court to

conduct further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED and RE-

MANDED in part.

129 Fed.Appx. 529

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-11695

Non-Argument Calendar

D. C. Docket No. 96-03257-CV-RRA-M

ANTHONY ASH,

JOHN HITHON,

Plaintiffs-Appellants,

EDDIE BULLOCK, et al.,

Plaintiffs,

versus

TYSON FOODS, INC.,

a corporation,

Defendant-Appellee,

THOMAS HARTLEY,

an individual,

Defendant.

Appeal from the United States District Court

for the Northern District of Alabama

(April 19, 2005)

Before DUBINA, CARNES and MARCUS, Circuit Judges.

10a

PER CURIAM:

Appellants Anthony Ash and John Hithon, black

males, (collectively “the appellants”) appeal the district

court’s orders (1) granting Tyson Foods, Inc.’s renewed

motion for judgment as a matter of law, pursuant to Fed.

R. Civ. P. 50(b), on their 42 U.S.C. § 2000e et seg. (“Title

VII”) and 42 U.S.C. § 1981 discrimination claims, and (2)

alternatively granting Tyson’s motion for a new trial,

pursuant to Fed. R. Civ. P. 50(c), on the basis that the

jury’s punitive and compensatory damages awards were

excessive and unsupported by the evidence. We affirm in

part and reverse and remand in part.

During the summer of 1995, the appellants, who were

superintendents at Tyson’s Gadsen, Alabama poultry

plant, applied for two shift manager positions at the

Gadsen plant. Thomas Hatley, the Gadsen plant manager,

decided to hire Randy King and Steve Dade, white males,

for the two shift manager positions. Following Hatley’s

decision to choose King and Dade for the shift manager

positions, the appellants filed suit, claiming, inter alia,

that their failure to be promoted to the shift manager

positions violated their rights under Title VII and 42

U.S.C. § 1981.

A. Judgment as a Matter of Law

On appeal, the appellants initially argue that the

district court should not have granted Tyson’s renewed

motion for judgment as a matter of law because it had

denied the motions for judgment as a matter of law at trial

and there were no intervening events to justify the court

to change its mind. The appellants then contend that

Tyson’s reasons for not promoting them were pretextual.

lla

In support of the pretext argument, the appellants argue

that: (1) Hatley provided shifting reasons for his decision

not to hire them; (2) Hatley used qualifications that (a)

were not required by company policy, and (b) excluded the

appellants; (3) Hatley only checked references for black

candidates and did not review King’s or Dade’s perform-

ance reviews or personnel files; (4) Hatley lied about a

college degree requirement for the shift manager position;

(5) Hatley offered King the shift manager position before

interviewing Hithon for the job; (6) Hatley hand-picked

Dade for the shift manager position despite telling the

superintendents that he would hold the position open

before deciding on the promotion; (7) Tyson failed to prove

that the Gadsen plant was losing money when Ash and

Hithon were superintendents; and (8) Hatley’s decision

was made in an atmosphere where black employees were

treated differently, including Hatley’s cool demeanor

toward the appellants and his statements referring to the

appellants as “boys.”

We review a district court’s grant of a Fed. R. Civ. P.

50(b) renewed motion for judgment as a matter of law de

novo and apply the same standard as the district court.

See Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000).

In reviewing the evidence, we draw all factual inferences

and resolve all credibility determinations in favor of the

non-moving parties, which in this case are Ash and

Hithon. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340,

1344-45 (llth Cir. 2000). However, “the non-movant must

put forth more than a mere scintilla of evidence suggesting

that reasonable minds could reach differing verdicts|,|”

and must show “[a] substantial conflict in the evidence ...

before a matter will be sent to the jury.” Abel, 210 F.3d at

1337. “Credibility determinations, the weighing of the

12a

evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge.” Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120

S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000) (citation and

internal quotation omitted). “A motion for judgment as a

matter of law will be denied only if reasonable and fair-

minded persons in the exercise of impartia] judgment

might reach different conclusions.” Abel, 210 F.3d at 1337

(citation, internal punctuation and quotation omitted).

Title VII of the Civil Rights Act of 1964 prohibits

an employer from “discriminat[ing] against any individual

with respect to compensation, terms, conditions, or privi-

leges of employment, because of such individual’s race... . ”

42 U.S.C. § 2000e-2(a)(1). Under 42 U.S.C. § 1981, every

person in the United States:

shall have the same right in every State and Ter-

ritory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the secu-

rity of persons and property as is enjoyed by

white citizens, and shall be subject to like pun-

ishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

42 U.S.C. § 198l(a). This statute is interpreted as “af-

fordling] a federal remedy against discrimination in

private employment on the basis of race.” Johnson v.

Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95

S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). When a case of

intentional discrimination is brought under either Title

VII or § 1981, we employ the McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973), framework. See Cooper v. Southern Co., 390 F.3d

695, 724 n. 16 (11th Cir. 2004).

13a

Under McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.

at 1824, the plaintiff must first establish a prima facie

case of discrimination, which a plaintiff establishes in a

failure to promote case by showing that: (1) “he is a mem-

ber of a protected class”; (2) “he was qualified for and

applied for the promotion”; (3) “he was rejected”; and (4)

“other equally or less qualified employees who were not

members of the protected class were promoted.” Combs v.

Plantation Patterns, 106 F.3d 1519, 1539 n. 11 (11th Cir.

1997) (citations omitted). Once a prima facie case is

developed, the defendant has the burden of producing a

legitimate, non-discriminatory reason for its decision. See

Reeves, 530 U.S. at 142, 120 S.Ct. at 2106. Once these two

burdens have been met, the McDonnell Douglas frame-

work disappears, and the sole issue is whether the em-

ployer acted discriminatorily. Jd. at 142-43, 120 S.Ct. at

2106. The plaintiff always has the ultimate burden to

prove that discrimination existed and may establish

discrimination “by showing that the employer’s proffered

explanation is unworthy of credence.” Jd. (citation and

internal quotation omitted). Therefore, “a plaintiff’s 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.” Jd. at 148, 120 S.Ct. at 2109. However, an

employer would be entitled to judgment as a matter of law

where “the plaintiff created only a weak issue of fact as to

whether the employer’s reason was untrue and there was

abundant and uncontroverted independent evidence that

no discrimination had occurred.” Jd. (citations omitted).

We have held that isolated general racial comments

“are not direct evidence of discrimination because they are

either too remote in time or too attenuated because they

l4a

were not directed at the plaintiff, .. . |. However,] we have

not held that such comments can never constitute circum-

stantial evidence of discrimination.” Ross v. Rhodes Furni-

ture, Inc., 146 F.3d 1286, 1291 (11th Cir. 1998) (citation

omitted). When a racial comment is provided as evidence,

we examine whether the comment “when read in conjunc-

tion with the entire record, [is] circumstantial evidence of

those decision makers’ discriminatory attitude. If so, the

court must then determine whether such circumstantial

evidence, along with other evidence ... , might lead a

reasonable jury to disbelieve [the employer’s] proffered

reason for [not promoting the employee].” Jd. at 1292.

While the use of “boy” when modified by a racial classifica-

tion like “black” or “white” is evidence of discriminatory

intent, see Browning v. President Riverboat Casino-

Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998) (indicating

that the use of “that white boy” was evidence of a dis-

criminatory attitude), the use of “boy” alone is not evi-

dence of discrimination. See Ruby v. Springfield R-12

Public School Dist., 76 F.3d 909, 912 (8th Cir. 1996)

(holding that referring to the appellant as “boy” and

comments about clothing and blacks committing more

crimes were not evidence of pretext); Bonner v. Home

Depot, 323 F.Supp.2d 1250, 1258-59 (S.D. Ala. 2004), aff’d,

No. 04-12887 (11th Cir. 2004) (finding that a single refer-

ence to a plaintiff as “boy” was not evidence of pretext).

We have noted that “[s]tanding alone, deviation from a

company policy does not demonstrate discriminatory

animus.” Mitchell v. USBI Co., 186 F.3d 1352, 1355-56

(11th Cir. 1999) (citation omitted). However, we have also

observed that deviation from company policy can be

circumstantial evidence of discrimination, especially

where the rules were bent or broken to give a non-minority

l5a

applicant an advantage. See Carter v. Three Springs

Residential Treatment, 132 F.3d 635, 644 (11th Cir. 1998);

see also Berg v. Fla. Dept. of Labor and Employment Sec.,

Div. of Vocational Rehab., 163 F.3d 1251, 1255 (11th Cir.

1998) (suggesting that failure to adhere to or inconsistent

application of policies may be circumstantial evidence of

discrimination where there is a showing that the policies

were applied to others). Additionally, a plaintiff’s showing

that an employer’s reason for not following a company

policy was pretextual does not establish intentional

discrimination without a finding that the employer acted

because of race. See Clark v. Huntsville City Bd. of Educ.,

717 F.2d 525, 528 (11th Cir. 1983).

Finally, we have indicated that the issue in discrimi-

nation cases is not whether one employee is better quali-

fied than another because we do not sit in judgment of an

employer’s decision. See Cooper v. Southern Co., 390 F.3d

695, 732 (11th Cir. 2004). As a result, “[iJn a failure to

promote case, a plaintiff cannot prove pretext by simply

showing that []he was better qualified than the individual

who received the position that []he wanted.” See Lee v.

GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000).

Pretext can be established through comparing qualifica-

tions only when “the disparity in qualifications is so

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

the face.” Cooper, 390 F.3d at 732 (citation and internal

quotation omitted). However, an employee’s showing that

the employer hired a less qualified candidate is probative

of whether the employer’s reason is pretextual, but not

proof of pretext. Lee, 226 F.3d at 1253.

After reviewing the record in the present case, we

conclude that Ash did not present sufficient evidence for a

reasonable jury to find that Tyson discriminated against

16a

him because none of the evidence applicable to his claims

establishes discrimination. However, we conclude that

Hithon presented a sufficient case of discrimination

because he demonstrated that Hatley interviewed him

after Hatley had already hired King, indicating that

Hatley’s stated reasons for rejecting Hithon — his lack of a

college degree, his position as a manager at a financially

troubled plant, and his lack of experience outside of the

Gadsen plant — were pretextual. This evidence of pretext

along with Hithon’s prima facie case of discrimination was

sufficient for the jury to decide whether Tyson discrimi-

nated. Accordingly, we conclude that the district court did

not err in granting Tyson’s motion for judgment as a

matter of law on Ash’s claims, but the court erred in

granting the motion for judgment as a matter of law on

Hithon’s claims.

B. New Trial

Because the district court did not err in granting

judgment as a matter of law in favor of Tyson on Ash’s

claims, the issue of whether the court should have alterna-

tively granted a new trial is moot for Ash. However,

because we conclude that the district court erred in grant-

ing a motion for judgment as a matter of law on Hithon’s

claims, we turn to his appeal of the district court’s alterna-

tive grant of a new trial.

On appeal, Hithon argues that the district court erred

in alternatively granting Tyson’s motion for a new trial

because: (1) the court’s order provided no basis for its

decision, making it impossible for him to appeal specific

grounds for the decision or to allow it to be reviewed at the

appellate level; (2) the court’s decision that the ratio

17a

between the punitive and compensatory damages awards

was premature as the court failed to determine back pay

and attorney’s fees; and (3) he presented sufficient

evidence to support the jury’s award of compensatory

damages. Also, Hithon adopts his district court brief,

contesting the district court’s decision to grant a new trial.

1. Standard of Review

We review a district court’s grant of a new trial for an

abuse of discretion. F.D.I.C. v. Stahl, 89 F.3d 1510, 1514

(1lth Cir. 1996). In employing the abuse of discretion

standard for granting new trials, we use a more stringent

approach. Jd. The district court “should grant a motion for

a new trial when

the verdict is against the clear weight of the evi-

dence or will result in a miscarriage of justice,

even though there may be substantial evidence

which would prevent the direction of a ver-

dict.... Because it is critical that a judge does

not merely substitute his judgment for that of

the jury, new trials should not be granted on evi-

dentiary grounds unless, at a minimum, the ver-

dict is against the great — not merely the greater

— weight of the evidence.”

Lipphardt v. Durango Steakhouse of Brandon, Inc., 267

F.3d 1183, 1186 (llth Cir. 2001) (internal citations and

quotations omitted).

2. Punitive Damages

“(PJunitive damages ‘are awarded solely to punish

defendants and deter future wrongdoing.’” U.S. E.E.O.C.

v. W & O, Inc., 213 F.3d 600, 616 (11th Cir. 2000) (quoting

18a

Walters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir.

1986). We have held that punitive damages are available

under § 1981. See Claiborne v. Illinois Cent. R. R., 583

F.2d 143, 154 (5th Cir. 1978);’ see also Johnson v. Railway

Express Agency, Inc., 421 U.S. at 460, 95 S.Ct. at 1720

(stating in dictum that punitives are available in § 1981

actions). Under Title VII, punitive damages are also

available if the plaintiff shows the employer “engaged in a

discriminatory practice or discriminatory practices with

malice or with reckless indifference to the federally pro-

tected rights of an aggrieved individual.” See 42 U.S.C.

§ 198la(b)(1). However, where a plaintiff has both Title

VII and 42 U.S.C. § 1981 discrimination claims, the

plaintiff is not constrained by the damage caps under Title

VII and may recover under $1981. See 42 U.S.C.

§ 1981la(a)(1), (b)(4). “[A]Jny case law construing the puni-

tive damages standard set forth in § 198la ... is equally

applicable to clarify the common law punitive damages

standard with respect to a § 1981 claim.” See Lowery v.

Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir. 2000).

As a result, punitive damages are available under 42

U.S.C. § 1981 when an “employer has engaged in inten-

tional discrimination and has done so with malice or with

reckless indifference to the federally protected rights of an

aggrieved individual.” Kolstad v. American Dental Ass’n,

527 U.S. 526, 529-30, 119 S.Ct. 2118, 2122, 144 L.Ed.2d

494 (1999) (quotation omitted). “‘[Mlalice’ or ‘reckless

indifference’ pertain to the employer’s knowledge that it

may be acting in violation of federal law, not its awareness

* In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.

1981) (en banc), we adopted as binding precedent the decisions of the

former Fifth Circuit handed down prior to October 1, 1981.

19a

that it is engaging in discrimination.” Jd. at 535, 119 S.Ct.

at 2124. “Malice means ‘an intent to harm’ and reckless-

ness means ‘serious disregard for the consequences of

[one’s] actions.’” U.S. E.E.0.C. v. W & O, Inc., 213 F.3d at

611 (citation omitted) (alteration in original). Intentional

discrimination will not rise to the level of maliciousness or

recklessness where the employer: (1) is “unaware of the

relevant federal prohibition”; or (2) “discriminates with the

distinct belief that its discrimination is lawful.” Kolstad,

527 U.S. at 536-37, 119 S.Ct. at 2125. A plaintiff does not

have to show egregiousness or outrageous discrimination

to prove punitive damages although this is one form of

proof. Jd. at 538-39, 119 S.Ct. at 2126. Not only must the

plaintiff show maliciousness or recklessness, but he must

“also impute liability to the employer. Jd. at 539, 119 S.Ct.

at 2126. The Supreme Court has held that an employer

will not be held liable for punitive damages where “the

discriminatory employment decisions of managerial agents

..,. are contrary to the employer’s good-faith efforts to

comply with [42 U.S.C. § 1981].” See id. at 545, 119 S.Ct.

at 2129 (quotation omitted). In the absence of evidence of a

good-faith effort to comply with § 1981, an employer will

be liable for actions of its agent when the agent served the

employer in a managerial capacity and committed the

intentional discrimination at issue while acting in the

scope of employment. See id. at 542-43, 119 S.Ct. at 2128.

As initial matters, we first conclude that Hithon first

cannot adopt arguments from his district court brief

contesting Tyson’s motion for a new trial. See Four Sea-

sons Hotels and Resorts, B.V. v. Consorcio Barr S.A., 377

F.3d 1164, 1167 n. 4 (11th Cir. 2004) (“rejectling] the

practice of incorporating by reference arguments made to

district courts, and ... hold[ing] that [the appellant] ...

20a

waived the arguments it ha[d] not properly presented for

review”). Second, Hithon’s argument that the district court

failed to give reasons for its decision to grant a new trial

as required by Fed. R. Civ. P. 50(c) is without merit be-

cause the court stated its reasons by determining that the

compensatory and punitive damages 2»:ards were “against

the great weight of the evidence and iwere] outrageously

excessive and shocking to the judicial conscience.”

We conclude that the district court did not abuse its

discretion in granting a new trial on the basis of the jury’s

punitive damages award because the evidence was insuffi-

cient to support an award of punitive damages as Hithon

has failed to present any evidence that Hatley knew he

was violating federal law when he failed to promote

Hithon. Moreover, because Hithon failed to establish that

Hatley acted with malice or reckless indifference to his

federal rights, we conclude that the district court did net

err in granting a new trial on the punitive damages

award.

3. Compensatory Damages

This court has stated that “[a]lthough compensable

damage must be proven, ... general compensatory dam-

ages, as opposed to special damages, need not be proven

with a high degree of specificity.” Ferrill v. Parker Group,

Inc., 168 F.3d 468, 476 (11th Cir. 1999). “Compensatory

damages may be inferred from the circumstances” or

proven through testimony. /d. (citation and internal

quotation omitted). Evidentiary shortcomings go to the

amount of loss, not to the issue of damages. Jd. Under

§ 1981, compensatory damages encompass: (1) emotional

harms such as humiliation and insult; (2) intangible,

2la

psychological injuries; or (3) financial, property, or physi-

cal harms. /d. (citations omitted). There is no requirement

that emotional damages be proven through medical

evidence or expert testimony. See Kim v. Nash Finch Co.,

123 F.3d 1046, 1065 (8th Cir. 1997) (holding that “medical

or other expert evidence was not required to prove emo-

tional distress and that there was sufficient evidence of

emotional distress”) (persuasive authority).

After reviewing the record, we conclude that the

district court did not abuse its discretion in granting the

motion for a new trial on the compensatory damages

award because Hithon provided insubstantial evidence to

support the jury’s $250,000 compensatory damages award.

For the foregoing reasons, we affirm the district

court’s grant of judgment as a matter of law in favor of

Tyson on Ash’s discrimination claims. We reverse the

district court’s grant of judgment as a matter of law in

favor Tyson on Hithon’s discrimination claims. However

with respect to Hithon, we affirm the district court’s

decision to alternatively grant a new trial because there

was insufficient evidence to support the jury’s punitive

damages award and the compensatory damages award

was excessive. We remand this case for the district court to

conduct further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED AND RE-

MANDED IN PART.

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

ANTHONY ASH,

EDDIE BULLOCK,

ROBIN DAVENPORT,

JOHN HITHON,

TRAVIS TANNER, and

VIVIAN THORNTON,

Plaintiffs,

CIVIL ACTION NO.

96-RRA-3257-M

VS.

TYSON FOODS, INC.,

a corporation, and

THOMAS HATLEY, an individual,

Defendants.

i i i a

MEMORANDUM OF DECISION

(Filed Mar. 26, 2004)

The jury found in favor of the remaining plaintiffs,

Anthony Ash and John Hithon, on their claims of promo-

tion discrimination, and returned identical awards of

compensatory damages in the amount of $250,000.00, and

punitive damages in the amount of $1,500,000.00.’ Before

the court is the defendant’s Rule 50 motion for judgment

as a matter of law on the plaintiffs’ discrimination claims,

" The question of back-pay was reserved for a bench trial, and the

court reserved that matter until ruling on the current motion. The

claims of Hithon and Ash in question are the only remaining claims, as

the other claims remaining after the court’s ruling on the defendants’

motion for summary judgment have been dismissed. Defendant Hatley

has been dismissed from the case.

23a

their claims for compensatory damages, and their claims

for punitive damages (ct. doc. 247). The defendant filed a

memorandum of law in support thereof (ct. doc. 254). The

plaintiffs filed their opposition (ct. doc. 259) and a support-

ing brief (ct. doc. 260), to which the defendant filed a reply

(ct. doc. 265). At oral argument, the defendant filed a

further response addressing the plaintiffs’ particular

assertions of pretext (ct. doc. 297).

The court has the duty to grant the defendant’s

motion and dismiss plaintiffs Hithon’s and Ash’s discrimi-

nation claims if the evidence is insufficient to sustain

findings that the plaintiffs were passed over for promotion

to shift manager because of their race. Although it is the

trial evidence which is under consideration, the standard

is the same as if the court were considering a motion for

summary judgment. The trial transcript allows the evi-

dence presented to the jury to be carefully considered.

Reasons Given by Hatley for Selecting

King and Dade over Hithon

Hatley did not base his promotion decisions on the

written qualifications for shift manager. Hatley testified

that he based his decisions on these factors: experience in

the poultry industry in a successful plant; leadership and

organizational skills; experience in more than one plant;

having a college degree; and, as the primary consideration,

Hatley’s belief that it would be better to have as shift

managers persons who were not associated with the badly-

performing Gadsden facility. With respect to the latter,

Hatley strongly relied on what he was told by others

(references) in assessing current managers. This was

24a

explained by Hatley, in part, when he testified to what he

told an applicant who did not get the job:

Q. Did you tell him very clearly what the pri-

mary reason he didn’t get the job was?

A. I most certainly did.

And what was that? What did you tell him?

A. Again, that we had poor performance at

Gadsden. We had a group of managers there

that admittedly, no issue that they had been

in the business for a long time. You call that

knowledge, call that experience, whatever.

But the numbers were bad. We were losing

money.

And, the huge question mark in my

mind is what part did their leadership play

in the poor performance and, more impor-

tantly, why hadn’t the leadership help

change that.

Q. Now, how long had you had to observe per-

sonally the performance of those two guys?

A. Not very long. Again, these two shift man-

agers —

Q. Did you do anything to double check to be

sure that maybe in spite of their association,

that there might be — you know, that you

shouldn’t give so much weight to that?

A. Well, again, John Pittard worked with these

guys for a long period of time. As a matter of

fact, I think, it’s also noted. And I asked

him. And my concern — the question mark

there based on John’s reference was not

erased.

Trial Transcript, pp. 439-40.

25a

Ash Was Not Considered

Hatley testified that Ash told him at the beginning

that he did not think he was ready to be a shift manager,

and, therefore, did not consider Ash for either shift man-

ager opening. Ash’s evidence, however, is that he told

Hatley that he wanted to be considered for the job. As the

non-moving party, Ash’s version of the evidence must be

taken as true. However, it is Ash’s position, and the

evidence is uncontroverted, that Hatley did not consider

Ash for either shift manager opening.’ Hatley testified:

THE COURT: Did you say that Ash did not

come to you and tell you that he wanted the sec-

ond slot that came open?

THE WITNESS: He did not.

THE COURT: Did you consider him even

though he didn’t come to you and say that? Did

you still consider him?

THE WITNESS: Sir, after he told me in the

office that he was not ready for the shift man-

ager’s position, I didn’t consider him beyond that.

Trial Transcript, p. 456. Why did Hatley not consider Ash?

The defendant contends that Hatley simply acted on Ash’s

statement that he was not ready for the job, while Ash

asserts discrimination.

Law of Pretext

Because it is believed that the evidence supports

a finding that the plaintiffs were qualified to be shift

* Nevertheless, the defendant compares and discusses Ash’s

qualifications.

26a

managers, and because Hatley offered legitimate, non-

discriminatory reasons — the factors previously enumer-

ated that Hatley stated he based his decisions on — for

selecting King and Dade, who are both white, Hithon must

show that these considerations were pretextual. It is

incumbent on a plaintiff tc show pretext as to each and

every reason given by the decision-maker for taking the

action complained of. In the context of pretext, Hatley’s

considerations in selecting King and Dade should be

considered as one “reason,” as Hatley considered them

together and overall, not separately. Together, they are

deemed “qualifications.”

Pretext “means a lie, specifically a phony reason

for some action.” Russell v. Acme-Evans Co., 51

F.3d 64, 68 (7th Cir.1995). The question is not

whether the employer properly evaluated the

competing applicants, but whether the em-

ployer’s reason for choosing one candidate over

the other was honest. Brill v. Lante Corp., 119

F.3d 1266, 1273 (7th Cir.1997). “‘Pretext for dis-

crimination’ means more than an unusual act; it

means something worse than a business error;

‘pretext’ means deceit used to cover one’s tracks.”

Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005

(7th Cir.2001) (internal citations omitted). Thus,

even if IBP’s reasons for selecting Harris over

Millbrook were “mistaken, ill considered or fool-

ish, so long as [the employer] honestly believed

those reasons, pretext has not been shown.”

Jordan v. Summers, 205 F.3d 337, 343 (7th

Cir.2000).

Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir. 2002).

The court is “not in the business of adjudging whether

employment decisions are prudent or fair. Instead, [its]

sole concern is whether unlawful discriminatory animus

27a

motivates a challenged employment decision.” Damon uv.

Fleming Supermarkets of Florida, Inc., 196 F.2d 1354,

1361 (11th Cir. 1999). A plaintiff must show not merely

that the defendant’s employment decisions were mistaken,

but that they were in fact motivated by [improper dis-

criminatory reasons]. Lee v. GTE Florida, Inc., 226 F.3d

1249, 1253 (11th Cir. 2000). Evidence of pretext might not

be enough to prove intentional discrimination:

(if the plaintiff proves at trial that the defen-

dant’s proffered reason for its employment deci-

sion was false, i.e., pretextual, that is “one form

of circumstantial evidence that is probative of in-

tentional discrimination, and it may be quite

persuasive.” Jd. But “[i]t is not enough to disbe-

lieve the employer; the factfinder must believe

the plaintiffs explanation of intentional dis-

crimination.” Jd. Thus, as the Supreme Court in

Reeves stressed, the existence of the prima facie

case, coupled with evidence of pretext, is not al-

ways enough to satisfy the plaintiff's burden of

proving intentional discrimination. Jd. at 146-47,

120 S.Ct. 2097 (“This is not to say that such a

showing by the plaintiff will always be adequate

to sustain a jury’s finding of liability. Certainly

there will be instances where, although the

plaintiff has established a prima facie case and

set forth sufficient evidence to reject the defen-

dant’s explanation, no rational] factfinder could

conclude that the action was discriminatory.”).

Applying Reeves, we must first consider whether

Millbrook presented sufficient evidence of pretext

— not because that is dispositive, but because if

IBP’s asserted justification for selecting Harris

were pretextual, that could constitute circum-

stantial evidence that IBP intentionally dis-

criminated against Millbrook. From there, we

28a

review the record as a whole to determine

whether the evidence in its entirety supports a

reasonable inference of race discrimination. /d.

at 148, 120 S.Ct. 2097.

Millbrook v. IBP, Inc., 280 F.3d at 1174. “[A]n employer

would be entitled to judgment as a matter of law ... if the

plaintiff created only a weak issue of fact as to whether

the employer’s reason was untrue and there was abundant

and uncontroverted independent evidence that no dis-

crimination had occurred.” Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. at 148. Moreover, the plaintiffs

must present evidence that Hatley lied. It is not enough

for the factfinder simply to disbelieve Hatley’s reasons.

“(Without proof of a lie [as to what the employer believed]

no inference of discriminatory motive can be drawn.”

Millbrook v. IBP, Inc., 280 F. 3d at 1181, quoting Olsen v.

Marshal & Ilsley Corp., 267 F.3d 597, 602 (7th Cir. 2001).

[T]his standard is consistent with the plaintiff’s

ultimate burden of proof in discrimination cases.

Such a plaintiff cannot get to a “jury if his only

‘evidence’ had been that defendants’ witnesses

were not worthy of belief. That would have made

it a no-evidence case, and such a case a plaintiff

must lose, because he has the burden of proof.”

Equal Employment Opportunity Commission v.

G-K-G, Inc., 39 F.3d 740, 746 (7th Cir.1994) (in-

ternal citations omitted). Rather, “to avoid a di-

rected verdict or a JNOV, a plaintiff must do

more than merely argue that the jury might have

chosen to disbelieve all of the defendant’s evi-

dence.... A plaintiff must offer substantial evi-

dence to support the argument.” Perfetti v. First

National Bank of Chicago, 950 F.2d 449, 456 (7th

Cir.1991) (internal quotations omitted). Thus,

“la] party cannot meet its burden of proof ‘by

29a

relying on the hope that the jury will not trust

the credibility of the witnesses....’” Jd. (inter-

nal citation omitted). Yet that is exactly what

Milibrook attempts; he seeks to justify the jury

verdict based on his contention that the jury

could have disbelieved IBP’s assertion that it

selected Harris because of his superior qualifica-

tions. However, without some affirmative evi-

dence calling into question IBP’s credibility,

Millbrook must lose. See also, Fischbach, 86 F.3d

at 1183 (“Title VII liability cannot rest solely

upon a judge’s determination that an employer

misjudged the relative qualifications of admit-

tedly qualified candidates.”). Thus, to reconcile

this precedent, we must adopt the standard that

we have today — that comparative qualifications

do not support a finding of pretext — or we would

be allowing plaintiffs to reach the jury based

solely on a claim that the employer cannot be be-

lieved. We have consistently rejected such claims.

See, e.g., Massey v. Blue Cross-Blue Shield of Il-

linois, 226 F.3d 922, 926 (7th Cir. 2000) (“It is

always possible, of course, that the jury might

have disbelieved everything [the employer] said,

but we routinely deny summary judgments based

on that kind of hope, and consistency requires us

also’ to reject that possibility as a way of saving

the jury’s verdict.”)

Millbrook v. IBP, Ine., 280 F.3d at 1181-82.

The question before the court, then, is whether suffi-

cient evidence was presented at trial to show that Hatley’s

reason for selecting King and Dade over Hithon was not

real, and that his real reason for selecting King and Dade

was to deny Hithon promotion because he is black. Ash

must show that the evidence is sufficient to find that

30a

Hatley’s statement that he did not consider Ash because

Ash said he was not ready for the job was pretextual.

Plaintiffs’ Assertions of Pretext

The plaintiffs claim that there are several pieces of

evidence tending to establish pretext and intentional

discrimination. These assertions are set out in the plain-

tiffs’ opposition brief, and the court will comment on most

of them.

Qualifications

Hatley did not base his selections on the written

qualifications for shift manager.’ However, failure to follow

policy, without more, is not evidence of discrimination.

Mitchell v. USBI Company, 186 F.3d 1352, 1355-56 (11th

Cir. 1994). In this case, Hatley testified that, although he

was aware of Tyson’s EEOC policy, he was not aware of the

written qualifications for the shift manager position.

* Written qualifications

The written qualifications were set out as follows:

Education: Requires education beyond high

school including special training, vocational

school, and/or college course.

Experience: 3-5 yrs.

Computer Skills: Requires elementary computer

skills. For example, checking electronic mail, en-

tering data into document templates, or creating

simple queries.

Travel: 1-5 trips/yr.

Special Skills: (none).

The evidence at trial did not explore whether the appli-

cants met all of these written qualifications.

3la

Hithon contends that the fact that he was not selected

based on his qualifications alone is evidence of pretext. In

Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir. 2000),

the Eleventh Circuit set out the law concerning claims of

discrimination based on qualifications:

Other circuits have more clearly articulated the

evidentiary burden a plaintiff must meet in order

to prove pretext by showing she was substan-

tially more qualified than the person promoted.

See Fulton County, 207 F.3d at 1340. In Deines,

for example, the Fifth Circuit affirmed the dis-

trict 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 dis-

parities in qualifications must be of such

weight and significance that no reasonable

person, in the exercise of impartial judg-

ment, could have chosen the candidate se-

lected 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 280-281.

Lee, 226 F.3d at 1254. The court held that “[nlone of Lee’s

proffered evidence established that she was more qualified

32a

than Hines, let alone so clearly more qualified for the

position than Hines that a reasonable juror could infer

discriminatory intent from the comparison. Jd. at 1255.

Also, it is perfectly acceptable for the decision-maker to

base his decision on subjective factors as long as they are

subject to objective evaluation. Chapman v. Al Transport,

229 F.3d 1012, 1034-35 (11th Cir. 2000). “[I]ndeed, for

higher level executive and managerial promotions, subjec-

tive factors may play a very substantial role.” Denney v.

City of Albany, 247 F.3d 1172, 1185 (11th Cir. 2001).

The qualifications of Ash, Hithon, King, and Dade,

which are stated in the parties’ submissions, are set out

generally as follows:

Hithon joined the poultry industry in 1982. His work

experience was limited to the Gadsden plant, where, as a

superintendent for five years, he was responsible for 500-

600 people. Hithon had military experience in the Na-

tional Guard. He did not have a college degree. Comments

on Hithon from “higher-ups” were negative.

Ash joined Tyson in 1980. His only experience outside

Gadsden was as a member of a group of 12 employees who

trained at the Blountsville plant for three months. In

1995, Ash had been a superintendent for just over one

year. He supervised a total of 350 workers. Ash helped

start the debone operation at the Gadsden plant, and later

helped start the IQF department. He did not have a

college degree.

King had worked in two successful Arkansas plants,

where he had been a shift manager. He did not have a

college degree. He was highly recommended, as will be

discussed later.

33a

Dade joined Tyson in 1993. He had held numerous

positions at the Boaz plant, including Personnel Manager,

Production Superintendent, First and Second Shift Super-

intendent, and Assistant Plant Manager, some of which

positions were held simultaneously. He was transferred to

Gadsden as maintenance supervisor in May of 1995. He

achieved the rank of Lieutenant Colonel after fourteen

years in the United States Marine Corps. In addition to a

Bachelor’s degree, Dade held a Master’s Degree in Man-

agement and Human Relations.

It is concluded that even if it could be found that

Hithon was more qualified than King or Dade, the dispar-

ity would not be so great as to allow a finding of discrimi-

nation based on the difference. In fact, the evidence shows

that King and Dade were more qualified, considering the

emphasis Hatley placed on wanting to bring in new

management and the recommendations he received.’

Whether Ash’s qualifications were so superior to Dade or

King that Hatley, out of a discriminatory intent, wanted to

avoid considering Ash by claiming that Ash told him that

he was not ready to be a shift manager, and whether other

asserted instances of pretext are evidence of such intent,

will be discussed later.

Other Claimed #vidence of Pretext

The plaintiff» claxm that there is certain evidence

which establishes racial animus on the part of Hatley and

calls into doubt the reasons he gave for not selecting

Hithon or considering Ash. The plaintiffs refer to evidence

* Recommendations are discussed, infra, pp. 14-15.

34a

that Hatley spoke or ate with whites only. Hatley’s testi-

mony that Hithon would come by his office and that they

would talk in the office and in the break room about

Hithon’s military experience and the things he would like

to do if he were shift manager was undisputed. This

evidence is hardly probative of a racial animus. The

plaintiffs also point to the testimony that on one occasion

Hatley called Hithon “boy,” and on two occasions he called

Ash “boy.” In a production meeting, Hatley said “Hey, boy”

as Hithon was walking through the door. Trial Transcript,

p. 150. In the cafeteria, Hatley said to Ash, “Boy, you think

you've got enough starch in those jeans?” Trial Transcript,

p. 252. Ash’s wife told Hatley that her husband was not a

boy, and Hatley laughed. Neither Ash nor Hithon com-

plained about the statements. Even if Hatley made these

statements, it cannot be found, without more, that they

were racial in nature.

The plaintiffs refer to other alleged evidence of dis-

crimination. They state that at the time in question there

had never been a black shift manager at the Gadsden

plant. This statement is unsupported with statistical

evidence sufficient to allow an inference of discrimination,

and is, therefore, meaningless. Moreover, Hatley, the sole

decision-maker, had nothing to do with the selection of

management personnel before he came to the Gadsden

plant.

The plaintiffs claim that the shift manager positions

were never posted. Hatley’s testimony that he instructed

Tyson’s resource manager, Ever Higgins, a black woman,

to post both openings, is uncontradicted.’ Certainly the

* King and Dade testified that they saw the postings.

35a

plaintiffs knew of the availability of the jobs, whether they

were posted or not. Moreover, Hatley talked to them about

the openings.

Hithon testified that he was made sanitation superin-

tendent before July, 1985, given more duties than the

white person who previously held that position, and then

was ignored when credit for the clean-up was given to

Dade. Dade testified that Hatley told him that Purdle had

complimented Dade as the person mainly responsible for

the effort. Hatley, the decision-maker, had nothing to do

with the things about which Hithon complains.

The plaintiffs state that Hatley interviewed Hithon

and Blake on the same day he hired King. The apparent

implication is that Hatley’s interviews with Hithon and

Blake, black men, were shams, because King had already

been hired. In his testimony, Hatley explained that he

simply did not record his interviews with Hithon and

Blake at the time they were interviewed, which was before

King was hired. The evidence shows that Hatley was not

always orderly or punctual in his note taking or the

recording of his notes, but that is not evidence of discrimi-

natory intent.

There was evidence that Hatley said he was going to

work with the superintendents, one of whom was white,

for six months, evaluate them, and then fill the second

position. However, Dade was given the job less than a

month later, which was before Hatley had been on board

at Gadsden a full six months. The plaintiffs apparently

contend that the fact that Hatley did not wait for six

months indicates that he did not intend to give them a fair

evaluation. It is just as likely, however, that Hatley, who

was told to get the situation in Gadsden corrected as soon

36a

as possible, who was hesitant to hire a manager at the

Gadsden plant as a shift manager, and who received

negative recommendations on Hithon, simply decided it

was not necessary or prudent to wait six months to make a

decision. Hatley, of course, was under no obligation to wait

six months or any set amount of time to make his decision.

Hatley testified to the pressure he was under:

Q. Now, who told you that they wanted you to

go in and manage that plant?

A. Well, I was first contacted by Mark. After

the interview process, he said I had been se-

lected for the job.

Q. What was the potential future of that plant

if it continued to lose the kind of money that

it was losing the month you took over?

A. If we continued to lose that kind of money at

Gadsden, at some point, Tyson Foods, they

would have had to rationalize that plant.

They would have had to do a major signifi-

cant product change or think about closing

the plant.

Q. Did that concern you?

A. Sure, it did.

Q. Why?

Well, we had twelve to thirteen hundred

people whose livelihood depended on work-

ing at that plant.

Q. So what was your mission? Did anybody ex-

plain to you what your mission was when

they sent you to the plant?

A. The first monthly meeting that we had after

I came to the plant was shortly after that. It

37a

was made very clear to me by Mr. Purdle in

that meeting — again, you know, we're rank-

ing all the plants up there —

MS. WALKER: Judge, we would object to

hearsay.

MR. LACY: We don’t offer it for the truth,

just the fact there was a meeting where he

was given — he was given business instruc-

tions, Your Honor. I think it’s also permissi-

ble to show what he was told he was

supposed to do in his job.

THE COURT: Overruled.

Go ahead, Mr. Hatley.

And, again, in this meeting, Gadsden was

pretty well on the lower third on all the pa-

rameters you could look at.

MS. WALKER: Objection. It’s nonrespon-

sive, Your Honor.

THE COURT: Overruled.

Go ahead, Mr. Hatley.

And I remember very distinctly in that

meeting Mr. Purdle looking at me and say-

ing, you know, Tom, you don’t have long to

get this turned around. So that was my mis-

sion was to get it turned around.

That was in May, early May or late May?

The monthly meeting would have been in

May, yes.

Were you periodically reminded of the per-

formance of the plant and the mission?

Yes, I was.

38a

Q. Tell the jury some examples of those re-

minders.

A. Well, certainly Mark Waller, he was my

complex manager. We would talk almost

daily. But I worked quite a few Saturdays

there at the plant. I had quite a bit going on.

There were quite a few Saturdays

where Mr. Lovett, who was then the senior

vice-president of operations for Tyson, would

call me at the plant, and, you know, remind

me of what I had to get done and asked me

how I was going to get it done, that I didn’t

have a lot of time to get it done.

Trial Transcript, pp. 410-13.

The plaintiffs also state that Hatley said that a college

degree was needed, and point out that King did not have

one. When asked whether a degree was absolutely re-

quired, Hatley testified that “[i]t was a criteria we looked

at, a requirement we looked at, but it was not an absolute

prerequisite, no.” Trial Transcript at 438. Lola Hithon, the

plaintiff’s wife, testified that Hatley was under consider-

able pressure to improve the ratio of managers at the

plant with college degrees but that a degree was not a

requirement for promotion. John Hithon himself testified

that there was pressure from above to get persons with

college degrees, particularly from Mark Waller, the com-

plex manager (manager of several plants). Finally, King

was already a shift manager at the Pine Bluff, Arkansas,

plant, and, therefore, being awarded the same position at

* Hatley advised Hithon to take leadership classes and work on a

college degree.

39a

Gadsden would be considered a lateral move, not a promo-

tion.

The plaintiffs even contend that the evidence was

disputed as to whether the plant had been losing money.

The evidence that the plant was losing money was clear.

Even Hithon testified that he would rate the Gadsden

plant very much below average for the past two years. In

any event, it is without dispute that Hatley was sent to

Gadsden for the very purpose of improving the plant’s poor

financial performance.

Hatley testified that he considered the negative

comments about Hithon from John Pittard, a former

Gadsden plant manager who had supervised Hithon for

eight years. Pittard told Hatley that Hithon’s performance

was less than standard. Hatley further testified that

“John’s recommendation was that he would most definitely

not recommend, at all, that John [Hithon] works hard, but

that he couldn’t grasp the whole picture.” Hatley Trial

Testimony, p. 445. In response, Hithon points to a 1990

letter written by Pittard, commending his job perform-

ance. Hatley, however, was not even aware of the five-year

old letter’s existence. On the other hand, Hatley testified

that in addition to the fact that King was already working

at a successful plant as a shift manager, King had very

positive references from Tyson’s executive vice-president of

operations and senior vice-president of operations. Speak-

ing of King, Hatley testified:

And, again, the leading factor was that he

was a shift manager already in a successful Ty-

son plant. In making phone calls to ask about

Randy, I got recommendations from a number

of people, including our executive vice-president

40a

of operations at the time, and the senior vice-

president said, Tom, if you can get this young

man, you need to do that.

Trial Transcript, p. 446. Hatley also received strong

recommendations in favor of Dade. Waller highly recom-

mended him, and the Senior Vice-President of Operations

and the Executive Vice-President of Operations both

recommended that Dade be given “a shot” as shift man-

ager. Trial Transcript, p. 540. Hatley testified that these

recommendations had “an awful lot to do with” selecting

Dade. Id. at 454. Also, based on his observation of Dade’s

performance at the Gadsden facility, Hatley gave Dade

exceptional praise for his work ethic and ability to moti-

vate and lead people.

The plaintiffs state that the fact that Ash provided

Dade some training in second processing is by itself reason

enough to disbelieve Hatley’s “proffered reason for the

failure to select Mr. Ash as shift manager.” The court

disagrees. The fact that Dade received some training from

Ash does not contradict the factors Hatley stated he

considered, especially his desire to bring in new manage-

ment and the emphasis he placed on recommendations."

Conclusion

It is concluded that the evidence of pretext is insuffi-

cient to support a finding that the reasons given by Hatley

for making King and Dade shift managers were lies

’ As previously discussed, Hatley testified that he did not consider

Ash because Ash said that he was not ready for the position.

* Any other assertion of discrimination not commented on is no

more probative of discrimination than the assertions discussed.

4la

intended to cover-up racial discrimination against Hithon.

It is further concluded, assuming that Ash told Hatley that

he wanted to be interviewed and considered for shift

manager, that the evidence is insufficient to find that

Hatley’s failure to consider Ash was the result of an intent

to discriminate against him. Indeed, Hatley interviewed

black managers whom he believed wanted to be consid-

ered. Also, Ash’s qualifications were not a reason not to

consider him, because Hatley could have selected Dade or

King over Ash and a comparison of their respective qualifi-

cations would not have indicated discrimination. In short,

there is an insufficiency of evidence to support a finding of

intentional racial discrimination by Hatley against either

Hithon or Ash.

Wherefore, Tyson’s motion for judgment as a matter of

law on Ash’s and Hithon’s discrimination claims is due to

be granted, and those claims are due to be dismissed.’ A

final order in accordance with this memorandum of deci-

sion will be entered.

DONE this 26th day of March, 2004.

/s/ Robert R. Armstrong

Robert R. Armstrong, Jr.

United States Magistrate Judge

* Dismissal, of course, will moot the jury’s verdicts and the need for

any further proceedings.

42a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

ANTHONY ASH, EDDIE BULLOCK,

ROBIN DAVENPORT, JOHN

HITHON, TRAVIS TANNER and

VIVIAN THORNTON

)

Plaintiffs, ) CIVIL ACTION NO.

96-RRA-3257-M

Vs. )

TYSON FOODS, INC., a corporation:

)

and THOMAS HATLEY, an individual,

Defendants.

ORDER

(Filed May 18, 2004)

The defendant’s Rule 50(b) motion for judgment as a

matter of law has been granted. Pursuant to Rule 50(c),

the court now alternatively GRANTS the defendant’s

motion for a new trial. It is determined that the jury’s

verdict of discrimination is against the great weight of the

evidence. It is additionally determined that the evidence

does not come close to supporting the amount of the award

of compensatory damages or the amount of the award of

punitive damages, and that both awards are against the

great weight of the evidence and are outrageously exces-

sive and shocking to the judicial conscience.

DONE this 18th day of May, 2004.

/s/ Robert R. Armstrong

Robert R. Armstrong, Jr.

United States Magistrate Judge

43a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-11695-AA

ANTHONY ASH,

JOHN HITHON,

Plaintiffs-Appellants,

versus

TYSON FOODS, INC.,

a corporation,

Defendant-Appellee.

On Appeal from the United States District Court for the

Northern District of Alabama

ee err errr rrr)

ON REMAND FROM THE

UNITED STATES SUPREME COURT

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Filed Oct. 2, 2006)

Before: DUBINA, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge

in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure), the Petition(s) for

Rehearing En Banc are DENIED.

44a

ENTERED FOR THE COURT:

/s/ Joel F. Dubina

UNITED STATES CIRCUIT JUDGE

45a

District Court Decisions in The Eleventh Circuit

Applying The

“No Reasonable Person” Standard

Copeland v. CVS Pharmacy, Inc., 2006 WL 2699045, at *42

(N.D.Ga., Sept. 15, 2006)

English v. CSA Equipment Co., LLC, 2006 WL 2456030, at

*14(S.D.Ala., Aug. 22. 2006)

Davis v. NPC Pizza Hut, 2006 WL 2547667, at *8

(N.D.Ala., Aug. 22, 2006)

Brown v. Marriott Intl, Inc., 2006 WL 2189695, at *3

(N.D.Ga., July 31, 2006)

Lett v. Reliable Ruskin, 2006 WL 2056582, at *16

(M.D.Ala., July 24, 2006)

Gremillion v. Walgreen Co., Inc., 2006 WL 1794745, at *8-9

(M.D.Ala., June 28, 2006)

Epps v. Walgreen Co., Inc., 2006 WL 1537227, at *4

(M.D.Ala., June 1, 2006)

Brooks v. Dominquez, 2006 WL 1455682, at *9 (N.D.Ga.,

May 23, 2006)

Autry v. Nassau County School Bd., 2006 WL 1232812, at

*9-10 (M.D.Fla., May 6, 2006)

Lockett v. City of Montgomery, 2006 WL 1147295, at *3

(M.D.Ala., May 1, 2006)

Drakeford v. Alabama Cooperative Ext. System, 425 F.

Supp. 1274, 1277 (M.D.Ala. 2006)

Haley v. Potter, 2006 WL 861350, at *5 (M.D.Ala., March:

31, 2006)

46a

Bailey-Pittman v. UNISIA of Georgia Corp., 2006 WL

871100, at *6 (M.D.Ga., March 31, 2006)

Grimes-Couch v. Trizec-Hahn TBI Silver Springs LLC,

2006 WL 825812, at *2 (N.D.Ga., March 28, 2006)

Garrison v. Montgomery County Bd. of Education, 2006

WL 625876, at *11 (M.D.Ala., March 10, 2006)

Williams v. Fresenius Medical Care North America, Inc.,

2006 WL 640515, at *2 (S.D.Ala., March 9, 2006)

Dillahay v. City of Eastpoint, 2006 WL 449179, at *6 n. 12

(N.D.Ga., Feb. 22, 2006)

Labat v. Board of Trustees, Florida A & M University, 2005

WL 3693945, at *5 (N.D.Fla. Dec. 7, 2005)

Twilley v. Burlington Northern & Santa Fe Rwy. Co., 351

F. Supp. 1299, 1307 (N.D.Ala. 2004)

Harrington v. The Children’s Psychiatric Center, 2003 WL

23356396, at *10 (S.D.Fla., Feb. 18, 2003)

Dorrego v. Public Health Trust of Miami Dade County, 293

F. Supp. 2d 1274, 1283, 1285-86 (S.D.Fla. 2003)

Green v. Miami-Dade County, 2003 WL 22331877, at *8-9

(S.D.Fla., Sept. 9, 2003)

Gaddis v. Russell Corp., 242 F. Supp. 2d 1123, 1137

(M.D.Ala. 2003)

Rogers-Libert v. Miami-Dade County, 184 F. Supp. 2d

1273, 1280-81 (S.D.Fla. 2001)

Dancy-Pratt v. The School Board of Miami-Dade County,

2001 WL 1922063, at *7-8 (S.D.Fla., Dec. 13, 2001)

47a

Humphrey v. Potter, 162 F. Supp. 2d 1354, 1363 (S.D.Fla.

2001)

Tarrance v. Montgomery Cty. Bd. of Educ., 157 F. Supp. 2d

1261, 1264-65 (M.D.Ala. 2001)

Taylor v. Williams, 2000 WL 1844698, at *3 (S.D.Ala., Oct.

30, 2000)

District Court Decisions in the Fifth Circuit

Applying the “No Reasonable Person” Standard

Reilly v. TXU Corp., 2006 WL 2586818, at *12 (N.D.Tex.

Sept. 8, 2006)

Smith v. O’Keefe, 2006 WL 2167716 *9 (S.D.Tex. July 31,

2006)

Monroe v. Corpus Christi Ind. School Dist., 2006 WL

2092436, at *8 (S.D.Tex. July 26, 2006)

Thomas v. Trico Products Corp., 2006 WL 2092450, at *4-

*5 (S.D.Tex. July 25, 2006)

Harris v. Fresenius Medical Care, 2006 WL 2065313, at

*14-*15 (S.D.Tex. July 24, 2006)

Blackman v. City of Dallas, 2006 WL 1816390, at *3

(N.D.Tex. July 3, 2006)

Grother v. Union Pacific Railroad Co., 2006 WL 1662936,

at *10-*11 (S.D.Tex. June 9, 2006)

Watkins v. Texas Dept. of Criminal Justice, 2006 WL

1581833, at *6-*7 (S.D.Tex. June 6, 2006)

Jackson v. Principi, 2006 WL 1307958, at *7 (S.D.Miss.

May 11, 2006)

48a

Sinclair v. Potter, 2006 WL 763629, at *7-*10 (S.D.Tex.

March 23, 2006)

Blackwell v. Principi, 2006 WL 181398, at *9-*10

(S.D.Miss. Jan.13, 2006)

Thompson v. Board of Commisioners [sic] of Port of Orleans,

2005 WL 3543776, at *5 (E.D.La. Nov. 7, 2005)

Norwood v. Calpine Corp., 2005 WL 2171883, at *9

(S.D.Tex. Sept. 6, 2005)

Torres v. City of San Antonio, 2005 WL 356950, at *13

(W.D.Tex. Feb. 14, 2005)

Boyce v. Bank of America Technology and Operations, Inc.,

2004 WL 2545015, at *5-*6 (N.D.Tex. Nov. 10, 2004)

Butler v. Munsch Hardt Kopf & Harr, P.C., 2004 WL

2468964, at *6 (N.D.Tex. Nov. 1, 2004)

Nelson v. Bank of America, 2004 WL 942238, at *9

(N.D.Tex. April 30, 2004)

Lall v. Perot Systems Corp., 2004 WL 884438, at *7

(N.D.Tex. April 23, 2004)

Reynolds v. City of Dallas, 2004 WL 893425, at *8

(N.D.Tex. April 23, 2004)

Owens v. Excel Mgt. Services, Inc., 2004 WL 358153, at “9

(N.D.Tex. Feb. 13, 2004)

Mayes v. Office Depot, Inc., 292 F. Supp. 2d 878, 891

(W.D.La. Sept. 19, 2003)

Jones v. Louisiana State University Medical Center, 2002

WL 1342945, at *5-*7 (E.D.La. March 28, 2003)

49a

Hensley v. General Motors Corp., 2003 WL 298902, at *14

(N.D.Tex. Feb. 11, 2003)

Chustz v. City of New Orleans, 2002 WL 31556353, at *10-

*11 (E.D.La. Nov. 15, 2002)

Jerge v. City of Hemphill, Texas, 224 F. Supp. 2d 1086,

1093-94 (E.D.Tex. 2002)

Kokes v. Angeline College, 220 F. Supp. 2d 661, 666-67

(E.D.Tex. 2002)

Daniels v. Home Depot, Inc., 2002 WL 1398643, at *10

(E.D.La. June 26, 2002)

Mahaffey v. Mississippi Dept. of Wildlife, 2002 WL

1611504, at *4-*5 (N.D.Miss. June 20, 2002)

Gant v. Sabine Pilots, 204 F. Supp. 977, 988-99 (E.D.Tex.

2002)

Murphree v. Potter, 226 F. Supp. 2d 826, 836-37 (N.D.Miss.

2002)

McVicker v. Albemarle Corp., 2000 WL 1034541, at *6-*7

(M.D.La. June 26, 2000)

District Court Decisions in the Seventh Circuit

Applying the “No Reasonable Person” Standard

Metty v. Motorola, Inc., 2006 WL 2916822, at *10 (N.D.III.

Oct. 10, 2006)

Coolidge v. Consolidated City of Indianapolis, 2006 WL

2540314, at *12 (S.D.Ind. Aug. 30, 2006)

Currie v. Paper Converting Machine Co., 2006 WL

1117797, at *3 (E.D.Wis. April 24, 2006)

50a

Goodum v. White, 2006 WL 566469, at *21 (N.D.Ill. March

3, 2006)

Nowak v. International Truck and Engine Corp., 406 F.

Supp. 2d 954, 966 (N.D.IL., Dec. 19, 2005)

Jones v. City of Milwaukee, 2005 WL 3274338, at *5 n.3

‘E.D.Wis. Dec. 1, 2005)

Perez v. State of Illinois, 2005 WL 3132193, at *4 (C.D.IIl.

Nov. 22, 2005)

Knowles v. Trans Union, LLC, 2005 WL 3159363, at *12

(N.D.Ill. Nov. 21, 2005)

EEOC v. Northcentral Technical College District Board of

Trustees, 2005 WL 2840339, at *6 (W.D.Wis. Oct. 26, 2005)

Kabes v. School Dist. of River Falls, 387 F. Supp. 2d 955,

972 (W.D.Wis. 2005)

Patmythes v. The City of Janesville, 373 F. Supp. 2d 924,

938 (W.D.Wis. 2005)

Townsend v. Weyerhaeuser, 2005 WL 1389197, at *13

(W.D.Wis. June 13, 2005)

Wright v. Richmond Power and Light, 2005 WL 1025769,

at *3 (S.D.Ind. April 21, 2005)

Cavaliero v. First USA Bank, 2004 WL 1900000, at *7

(N.D.Ill. Aug. 23, 2004)

Terry v. Bank One, Inc., 2004 WL 1103011, at *8 (S.D.Ind.

May 17, 2004)

Williams v. United Technologies Carrier Corp., 310 F.

Supp. 2d 1002, 1016-17 (S.D.Ind. 2004)

5la

Blise v. Antaramian, 2004 WL 3708454, at *13 (E.D.Wis.

March 8, 2004)

Cole v. Greater Clark County Schools, 2004 WL 350446, at

*12 (S.D.Ind. Jan. 16, 2004)

Wells-Fenton v. Mineta, 2003 WL 23220054, at *12

(S.D.Ind. Dec. 30, 2003)

St. Louis v. American Family Mutual Ins. Co., 300 F. Supp.

2d 813, 824 (W.D.Wis. 2003)

Jackson v. Ashcroft, 2003 WL 1233037, at *4 (N.D.IIl.

March 13, 2003)

Mendenhall v. Mueller Streamline Co., 2003 WL 187405,

at *7 (N.D.IIl. Jan 28, 2003)

Guerra v. Illinois State Police, 2002 WL 31886848, at *3

(N.D.Ul. Dec. 26, 2002)

Myles v. City of Indianapolis, 213 F. Supp. 2d 962, 967

(S.D.Ind. 2002)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.