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Ash v. Tyson tries a comeback
January 18, 2007 by Ross Runkel at LawMemo
Less than a year after the US Supreme Court remanded Ash v. Tyson Foods to the 11th Circuit, the case is trying to make a comeback. [Details]
Plaintiffs have filed a petition for certiorari, and the case is on the Court's conference calendar for January 19.
And the petitioners' Reply Brief points to extensive plagiarism (my word) in which the 11th Circuit copied from the defendant's brief, and "reproduces even the typographical and grammatical errors." An Appendix to the Reply Brief sets out a detailed comparison of the brief and the opinion.
A manager called an African-American supervisor "boy," and the 11th Circuit said that could not be evidence of racial animus because the comment was not "black boy." The Supreme Court told the 11th Circuit to be a bit more realistic about the context of the word "boy" rather than categorically excluding it as evidence of pretext in a Title VII case. The 11th Circuit took another look and decided that "boy" in context could not have had any racial significance.
As evidence of pretext in a Title VII case two black employees had evidence that their qualifications were better than the qualifications of the folks that actually got the promotions they sought. The 11th Circuit said this evidence could not be used unless "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." The Supreme Court thought that was "unhelpful and imprecise" and sent the case back for some true legal reasoning. The 11th Circuit then applied the rule 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."
My view:
The qualifications issue badly needs Supreme Court review. Courts that follow some form of the "slap in the face" test (even when dressed up in fancy legal lingo) have got it backwards. It's for the jury to make any inferences about evidence unless no reasonable juror could make the inference. The 11th Circuit's test selects one type of pretext evidence for special treatment, and that evidence never gets to a jury.
The "boy" question is a serious one. However, I think the 11th Circuit is probably right in saying that the plaintiffs did not produce the right kind of evidence to show that the word was being used in its nasty and insulting sense.
Original 11th Circuit decision.
Supreme Court decision.
Second 11th Circuit decision.
Petition for certiorari.
Petitioners' Reply Brief (containing Appendix)
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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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