# Petition for Writ of Certiorari — Ash v. Tyson Foods, Inc. (No. 06-706) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1771%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## 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? il 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 1V 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 vi 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 Plaintiffs’ Exhibit 2. * Plaintiffs’ Exhibit 10 p. 8. ” Plaintiffs’ Exhibit 9. 6 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. 8 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. . 10 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 11 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) 12 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) 13 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). 14 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). 15 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.”). 16 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. 17 (“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 18 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 19 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. 20 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 21 872, 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. 22 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. 23 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). 24 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 25 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.”) 26 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) 27 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.”). 28 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 29 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 30 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 la 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: 2a I. 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 3a 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 4a 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, 5a 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 6a 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); Ja 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. V. 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. 8a AFFIRMED in part, REVERSED and RE- MANDED in part. 9a 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? A. 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 ( [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1771%3A1. Public record. Not legal advice.