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Big Case # 5 - Ash v. Tyson Foods
August 30, 2006 by Ross Runkel at LawMemo
#5 in the Big Cases Series for 2006: Ash v. Tyson Foods , 126 S.Ct. 1195 (US Supreme Court 02/21/2006)
Facts: Two African-American superintendents were denied promotions. There was evidence that the plant manager (the decisionmaker) referred to each of the employees as "boy." The 11th Circuit held that use of "boy" alone (without adding "white" or "black") was not evidence of racial animus. The employees submitted evidence that their qualifications were better than the two whites that were promoted, but the 11th Circuit rejected this as evidence of pretext.
Held (1): "Boy," standing alone, may or may not evidence racial animus.
Key quote: "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed term probative of bias, the court's decision is erroneous."
Later cases:
- Ash v. Tyson Foods, (11th Cir 08/02/2006) (unpublished) (adhering to original decision)
- Canady v. Wal-Mart Stores, 440 F.3d 1031 (8th Cir 03/17/2006) (2-1) (evidence did not support finding of harassment; "slave driver" was used to describe manger's reputation; employee did not complain about manager saying "what's up my nigga" and manager apologized)
Held (2): The following 11th Circuit formula is error: "Pretext can be established through comparing qualifications only when 'the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.'"
Key quote: "The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications."
Later cases:
- Ash v. Tyson Foods, (11th Cir 08/02/2006) (unpublished) (adhering to original decision)
- Brooks v. County Commission, 446 F.3d 1160 (11th Cir 04/18/2006) ("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," following Cooper v. Southern Co., 390 F.3d 695 (11th Cir 2004))
- Mlynczak v. Bodman, 442 F.3d 1050 (7th Cir 04/04/2006) ("essentially the same as" the Cooper standard)
- Bender v. Hecht Dept Stores, 455 F.3d 612 (6th Cir 08/01/2006) (qualifications evidence must be combined with other evidence of discrimination)
5th Circuit case from the past: Price v. Federal Express, 283 F.3d 715 (5th Cir 2002) (qualifications must "leap from the record and cry out to all who would listen that [the plaintiff] was vastly - or even clearly - more qualified for the subject job.")
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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