Ash v. Tyson Foods, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16135 AUGUST 17, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 96-03257-CV-RRA-M

ANTHONY ASH,
et al.,

Plaintiffs,

JOHN HITHON,

Plaintiff-Appellant-
Cross-Appellee,

versus

TYSON FOODS, INC., a corporation,

Defendant-Appellee-
Cross-Appellant,

THOMAS HATLEY, an individual,

Defendant.
________________________

Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(August 17, 2010)
Before CARNES and PRYOR, Circuit Judges, and DOWD,* District Judge.

PER CURIAM:

This case is before us for the fourth time. See Ash v. Tyson Foods, Inc.,

31 Fed. App’x 938 (11th Cir. Feb. 6, 2002) (Ash I); Ash v. Tyson Foods, Inc., 129

Fed. App’x 529 (11th Cir. Apr. 19, 2005) (Ash II), vacated, 546 U.S. 454, 126 S.

Ct. 1195 (2006), reinstated, Ash v. Tyson Foods, Inc., 190 Fed. App’x 924 (11th

Cir. Aug. 2, 2006) (Ash III). It used to involve multiple plaintiffs with claims of

employment discrimination arising out of the operation of a Tyson Foods chicken

processing plant in Gadsden, Alabama. See Ash I, 31 Fed. App’x 938. Now there

is only one plaintiff and one claim left: John Hithon and his 42 U.S.C. § 1981

claim based on Tyson’s failure to promote him to shift manager at the plant.

See Ash III, 190 Fed. App’x 924.

In the second appeal of this case we reversed the district court’s Federal

Rule of Civil Procedure 50(b) judgment as a matter of law for Tyson on this claim,

concluding that the evidence was sufficient to permit a jury to reasonably find that

the reason Hithon, who was African-American, was not promoted to shift manager

was because of racial discrimination. See Ash II, 129 Fed. App’x at 534, vacated,

*
Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.

2
546 U.S. 454, 126 S. Ct. 1195 (2006), reinstated, Ash III, 190 Fed. App’x at

926–27. We affirmed, however, the district court’s alternative ruling under

Federal Rule of Civil Procedure 50(c) that Tyson was entitled to a new trial on that

claim because there was insufficient evidence to support any award of punitive

damages (the jury had awarded $1,500,000) and because the jury’s award of

$250,000 in compensatory damages was excessive. See id.

When the case went back to the district court, it was bifurcated into liability

and damages phases. After Hithon had presented his evidence in the liability

phase, Tyson moved for judgment as a matter of law, arguing that Hithon had

failed to present enough evidence of discrimination for his claim to go to the jury.

The district court denied that motion. At the close of all evidence in the liability

phase Tyson again moved for a directed verdict and that motion was also denied.

The jury returned a verdict against Tyson on Hithon’s discrimination claim, and as

damages awarded him compensatory damages totaling $335,000 and punitive

damages in the amount of $1,000,000. The district court denied Tyson’s renewed

Federal Rule of Civil Procedure 50(b) motion for judgment as a matter of law on

the compensatory damages award, holding that there was sufficient evidence for

Hithon’s discrimination claim to have gone to the jury. The court granted the Rule

50(b) motion, however, insofar as the punitive damages award was concerned,

3
holding that there was insufficient “evidence to support a finding that Hatley’s

actions warranting punitive damages could be imputed to Tyson.” Tyson also

filed a Rule 59 motion for remittitur or, alternatively, a new trial, which the court

denied.

This case is here because both sides disagreed with the court’s rulings.

Hithon appealed the court’s decision to set aside the punitive damages award.

Tyson cross-appealed the court’s denial of its renewed motion for judgment as a

matter of law and its motion for remittitur or a new trial. Tyson also appealed

certain evidentiary rulings that the court made.

I.

In 1982 John Hithon graduated from high school and started working in the

Tyson chicken plant in Gadsden, Alabama.1 The positions he held at the plant

were each a progressive step in his career as a poultry processor. He started

working at the plant as a “live hanger,” required to hang 24 chickens a minute.

Next he worked in the part of the plant responsible for “killing and picking.”

After a return to the live hanging department as a front line supervisor, he worked

as a supervisor of the “eviscerating” and “debon[ing]” departments. In 1990

1
At that time, the plant was owned by Spring Valley, but we refer to it as “Tyson” for
consistency.

4
Hithon was promoted to a superintendent position, working the night shift. He

had worked as a superintendent in both of the departments that make up the

chicken processing operation (first- and second-processing) before he applied for a

shift manager job in 1995.

When Hithon sought a shift manager job, the plant hierarchy was like this

from top to bottom: one plant manager, two shift managers, six superintendents,

and then a number of supervisors, lead persons and hourly workers. The Gadsden

plant had never had a black plant manager or shift manager, but five of the six

superintendents there were black.

In April 1995 Tom Hatley, who is white, was hired as manager of the

Gadsden plant. Soon after he became plant manager, Hatley withheld wage

increases for the two shift managers (who were white) because the plant was

performing poorly, causing the two of them to resign in June or July of that year,

which created two open positions. At that time Randy King was working as a shift

manager at a Tyson plant in Pine Bluff, Arkansas. Hatley asked him to come to

the Gadsden plant to work as shift manager, and he transferred into that position in

July 1995. Steve Dade was working at a small Tyson plant in Boaz, Alabama. At

Hatley’s request Dade transferred to the Gadsden plant to work as a maintenance

5
supervisor and three months later, in August 1995, Hatley promoted him to the

other shift manager position. Both King and Dade are white.

Hithon, along with some other plaintiffs, later filed a lawsuit alleging

employment discrimination. Hithon claimed, among other things, that he was

discriminated against on the basis of race in violation of 42 U.S.C. § 1981 when

Hatley failed to promote him to either of the shift manager positions. The district

court denied Tyson’s motion for summary judgment on that particular claim

although it did grant Tyson summary judgment on some other claims. In an

interlocutory appeal, we affirmed. Ash I, 31 Fed. App’x 938.

Back in the district court, the pre-trial order the parties filed included a

section entitled “Contentions of the Parties,” which contained this “Agreed

Summary” of the facts Hithon alleged regarding his claim:

Hithon: John Hithon was a superintendent at the Gadsden plant for
five years prior to the time both Shift Manager positions became
available in July – August of 1995. Hithon met Tom Hatley, plant
Manager, and expressed a desire to be considered for Shift Manager,
and that he would also need a college degree, which Hithon did not
have. Within weeks, the First Shift Manager position was filled by
Randy King, a white male, who did not have a college degree, and
who was transferred in from another Tyson facility. Hatley told
Hithon he was not going to fill the other shift manager position for
six months, but within one week, he appointed Steve Dade, a white
male, with less experience and ability in being a Shift Manager, than
Hithon. As a matter of fact, three other Black males who applied for
the position of Shift Manager were more experienced and qualified
than Steve Dade. Hithon brought a claim for race discrimination in
6
 the promotion decision to Shift Manager and claims back pay, front
pay, interest, compensatory and punitive damages, attorney’s fees and
costs of this action.

The case was tried before a jury. The jury found Hithon had proven his racial

discrimination claim against Tyson involving the failure to promote him to shift

manager, and it awarded him compensatory and punitive damages.

The district court granted Tyson’s Rule 50 motion for judgment as a matter

of law on Hithon’s promotion discrimination claim. In its order doing so the court

summarized Hatley’s testimony about his reasons for choosing King and Dade

over Hithon as follows: “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.” The court concluded that “the evidence of

pretext is insufficient to support a finding that the reasons given by Hatley for

making King and Dade shift managers were lies intended to cover-up racial

discrimination against Hithon.” The court also granted Tyson’s motion for

judgment as a matter of law on the promotion discrimination claim brought by

another plaintiff, Anthony Ash.2 In the alternative, the court granted Tyson’s

2
Ash is not a party in this appeal. He is involved in the issues before us only to the extent
that he testified in the second trial about how he subjectively interpreted Hatley’s use of the term

7
motion for a new trial, finding that the jury’s verdict in favor of both plaintiffs was

against the great weight of the evidence.

Hithon and Ash appealed. Ash II, 129 Fed. App’x 529, vacated, 546 U.S.

454, 126 S. Ct. 1195 (2006), reinstated, Ash III, 190 Fed. App’x 924. They

contended that Tyson’s reasons for Hatley’s decision not to promote them were

pretextual because:

(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 [Hithon and Ash]; (3) Hatley only checked
references for black candidates and did not review King’s or Dade’s
performance 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 [Hithon and Ash] as “boys.”

Ash II, 129 Fed. App’x at 531.

In Ash II we first considered the evidence about Hatley’s use of the word

“boy” and held: “While the use of ‘boy’ when modified by a racial classification

like ‘black’ or ‘white’ is evidence of discriminatory intent, the use of ‘boy’ alone

“boy.” We will address that testimony later in this opinion.

8
is not evidence of discrimination.” Id. at 533 (citation omitted). We also observed

that deviation from company policy does not, by itself, establish an intent to

discriminate, but it can be circumstantial evidence of discrimination, “especially

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

advantage.” Id. We explained that “‘in 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.’” Id. (quoting Lee v. GTE

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

stated that when qualifications are compared in a discrimination case, pretext can

be established “only when ‘the disparity in qualifications is so apparent as

virtually to jump off the page and slap you in the face.’” Id. (quoting Cooper v.

Southern Co., 390 F.3d 695, 732 (11th Cir.2004)). Applying those rules, we held:

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 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 discriminated.
Accordingly, we conclude that the district court did not err in
granting Tyson’s [Rule 50(b)] motion for judgment as a matter of law

9
 on Ash’s claims, but the court erred in granting the motion for
judgment as a matter of law on Hithon’s claims.

Id. at 533–34. We decided, however, that the district court’s alternative decision

under Rule 50(c) to grant Tyson’s request for a new trial was correct “because

there was insufficient evidence to support the jury’s punitive damages award and

the compensatory damages award was excessive.” Id. at 536. On that basis we

remanded the case for a new trial. See id.

Our judgment was vacated by the Supreme Court. Ash v. Tyson Foods,

Inc., 546 U.S. 454, 126 S. Ct. 1195 (2006) (per curiam). The Court concluded

that: “The judgment of the Court of Appeals, and the trial court rulings it

affirmed, may be correct in the final analysis. In the course of its opinion,

however, the Court of Appeals erred in two respects, requiring that its judgment

now be vacated and the case remanded for further consideration.” Id. at 456, 126

S. Ct. at 1196.

First, the Supreme Court took issue with this Court’s analysis of the racial

implications of the word “boy.” It instructed us that while the use of the word

“boy” does not always evidence racial animus, neither is its use without modifiers

always benign. Id., 126 S. Ct. at 1197. The Court stated: “The speaker’s meaning

may depend on various factors including context, inflection, tone of voice, local

custom, and historical usage.” Id.

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 Second, the Court rejected the “jump off the page and slap you in the face”

standard for inferring pretext based on a comparison of qualifications. Id. at

456–57, 126 S. Ct. at 1197. Finally, the Supreme Court directed this Court to

“determine in the first instance whether the two aspects of its decision here

determined to have been mistaken were essential to its holding” and remanded for

further proceedings consistent with its opinion. Id. at 458, 126 S. Ct. at 1198.

On remand, in regard to Hatley’s use of the word “boy,” we held:

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 considered to have general racial
implications. The statements 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.”

Ash III, 190 Fed. App’x at 926. We also explained that the “‘jump off the page

test’ was not essential to [our] initial conclusion that the comparative
11
qualifications evidence did not provide sufficient evidence of pretext.” Id. at 927.

We stated: “On this record, we conclude that the plaintiffs did not meet their

burden under Cooper to show that the disparities 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 judgment, could have chosen the

candidate selected over the plaintiff for the job in question.’” Id. (quoting and

applying the standard from Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir.

2004)). After reaching those conclusions, we “reinstate[d] the previous holdings

of our [Ash II] decision.” Id. at 927. The bottom line for Hithon’s case was:

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 damages award, and the compensatory damages award was
excessive. We remand this case to the district court to conduct further
proceedings consistent with this opinion.

Id. That left the case in the same procedural posture that it had been in when we

issued Ash II, before the Supreme Court vacated our decision and remanded the

case to us. See Ash II, 129 Fed. App’x 529. Because a jury might reasonably find

that Hatley had not interviewed Hithon until he had already hired King, there was

enough evidence of pretext along with the prima facie case of discrimination for

the jury to decide whether Tyson discriminated against Hithon in filling that

12
particular position. Id. at 534. Hithon had not, however, presented enough

evidence to support a compensatory damages award in the amount of $250,000 or

any punitive damages award at all. Id. at 536. For those reasons a new trial was

necessary. See id.

Back in the district court, a pre-trial order directed the parties to submit their

factual contentions before the retrial. Hithon continued to assert that his

discrimination claim was based on Hatley’s decision not to promote him to either

of the two open shift manager positions, and his factual contentions referred to

both the shift manager position awarded to King, which we will call “the King

slot,” and the shift manager position awarded to Dade, which we will call “the

Dade slot.” Tyson responded in its factual contentions that Hithon had not

“presented sufficient evidence to allow any promotion claim regarding the

promotion of Steve Dade to be presented to the jury, and this claim is not

contemplated by [Ash III].”

In pre-trial motions Tyson argued to the district court that evidence about

the Dade slot should be excluded, but the court rejected that argument. Before the

retrial Tyson also filed three motions asking the district court to limit the evidence

in accordance with the law of the case. [DE:355, 356, 357] In one of its motions

in limine, Tyson contended that the “boy” evidence should be excluded from the

13
retrial. In another motion Tyson argued that this Court had restricted the remand

solely to evidence that Hatley had offered King the shift manager job before he

interviewed Hithon. In a third motion Tyson asserted that only evidence related to

the King promotion “claim” (and no evidence about the Dade promotion “claim”)

should be admitted. Tyson based that position on our statement in Ash II, which

we reinstated in Ash III, that “Hithon presented a sufficient case of discrimination

because he demonstrated that Hatley interviewed him after Hatley had already

hired King.” Ash II, 129 Fed. App’x at 534; see also Ash III, 190 Fed. App’x at

927. Tyson contended that this Court had thereby excluded from the retrial all

other “categories of evidence” except evidence about whether Hatley offered a

shift manager job to King before he interviewed Hithon. The district court

rejected that contention.

In ruling on Tyson’s motions in limine, the district court explained that it

would not make a pre-trial decision about “each and every bit of evidence” that

would be admitted or excluded. It denied Tyson’s motion to limit the evidence in

accordance with the law of the case, except as to the “boy” comment evidence.

The court stated that “[o]rdinarily, a new trial does not limit a plaintiff to

presenting the exact same evidence he presented in the original trial.” It

recognized, however, that the law of the case doctrine “precludes a reexamination

14
of a factual or legal issue previously decided by an appellate court.” Based on our

Ash II and Ash III decisions, the district court decided that evidence about

Hatley’s use of the term “boy” should be limited in the second trial: “Assuming

that the plaintiffs have presented all of the evidence concerning Hatley’s use of the

word ‘boy,’ . . . such evidence has no evidentiary value, and, therefore, the

defendant’s motion to limit or exclude this evidence is granted.”

During the trial, however, the district court reconsidered that issue and

asked Hithon’s counsel, “[W]hat is going to be different about the evidence [of the

use of the term “boy”] in this case?” Hithon’s counsel answered that the Supreme

Court’s opinion had instructed that attention should be paid to “tone, inflection,

and context” in the use of the word and that she intended to develop those facts

through witness testimony. The district court decided to allow that evidence,

explaining that: “[T]his is a new trial. The witnesses are not required to come in

and give the exact same testimony. If they were, you might as well just bring them

in and let them read the transcript from the previous testimony.”

After hearing all of the evidence the jury, in answer to the special

interrogatories, found that Hatley did not discriminate against Hithon based on

race when he hired King for a shift manager position, but he did discriminate

when he put Dade in the other shift manager position. The jury awarded Hithon

15
$35,000 in back-pay, $300,000 in compensatory (mental anguish) damages, and

$1,000,000 in punitive damages. On Tyson’s Rule 50(b) motion, the district court

vacated the punitive damages award but rejected Tyson’s argument that the

evidence was insufficient to support a finding of discrimination or the award of

compensatory damages. The court entered judgment on the jury’s verdict in favor

of Hithon in the amount of $364,049.33. Both sides appealed.

II.

Hithon’s direct appeal challenges the district court’s decision to vacate the

punitive damages award. Tyson’s cross-appeal challenges: the district court’s

refusal to enter judgment in its favor based on the law of the case; the court’s

denial of its motion for judgment as a matter of law based on insufficient evidence

of discrimination; a number of evidentiary rulings the court made; and the court’s

refusal to order remittitur of the jury’s award of compensatory damages. We will

take up Tyson’s cross-appeal, which is enough to resolve the appeal.

A.

Tyson first contends that in Ash III this Court remanded the case for the sole

purpose of determining whether Hatley racially discriminated against Hithon when

he selected King for the first available shift manager job. We need not address

16
Tyson’s law of the case argument because in any event the judgment in this case

cannot withstand the sufficiency of the evidence challenge.

B.

Tyson alternatively contends that even if the law of the case did not prohibit

the jury from considering whether Hithon was denied the Dade slot for racially

discriminatory reasons, it was still entitled to judgment as a matter of law because

the evidence does not support the jury’s finding of racial discrimination. “We

review the denial of a motion for a judgment as a matter of law de novo, and apply

the same standards as the district court.” Goldsmith v. Bagby Elevator Co., 513

F.3d 1261, 1275 (11th Cir. 2008). “We will reverse only if the facts and

inferences point overwhelmingly in favor of one party, such that reasonable people

could not arrive at a contrary verdict.” Id. (quotation marks omitted). We view all

the evidence and draw all inferences from it in the light most favorable to Hithon

because he is the nonmoving party. See id.

Tyson contends that it proffered race-neutral reasons for selecting Dade

instead of Hithon and that the evidence at trial was not sufficient to show that its

reasons were pretextual. The law of this circuit is that a plaintiff must make an

evidentiary showing creating a genuine issue of fact as to pretext for each of the

defendant’s proffered reasons, not merely for some or most of them. Chapman v.

17
AI Transp., 229 F.3d 1012, 1024–25 (11th Cir. 2000) (en banc) (“If the plaintiff

does not proffer sufficient evidence to create a genuine issue of material fact

regarding whether each of the defendant employer’s articulated reasons is

pretextual, the employer is entitled to summary judgment on the plaintiff's

claim.”); id. at 1037 (same); Combs v. Plantation Patterns, 106 F.3d 1519, 1543

(11th Cir. 1997) (plaintiff can avoid judgment as a matter of law only by

“producing evidence sufficient to discredit in the mind of a reasonable juror all of

the defendant’s proffered nondiscriminatory reasons for its actions”).

With that law in mind, we focus on what Tyson proffered as its primary

reason for selecting Dade instead of Hithon: the Gadsden plant had been

performing poorly for two years and Hatley, who had been brought in as the new

plant manager, wanted to put into the shift manager positions people who had not

been in a managerial position at the plant while it had been having problems.

Because this is undoubtedly a race-neutral reason, if Hithon failed to introduce

evidence from which a reasonable jury could find that it was pretextual, Tyson

was entitled to judgment as a matter of law. See Combs, 106 F.3d at 1543

(holding that the defendant was entitled to judgment as a matter of law because the

plaintiff “failed to produce evidence sufficient to permit a reasonable juror to

reject as spurious [the defendant’s] explanation that it promoted [another

18
employee] instead of [the plaintiff] to supervisor because [the other employee] had

superior supervisory experience”).

We take up in turn each of Hithon’s arguments as to why the evidence was

sufficient to show that Tyson’s stated reason of wanting to promote someone not

associated with the management of the plant when it was having problems was

pretextual.

1.

Hithon does not argue that Dade was associated with the Gadsden plant’s

problems, and he does not argue that he himself was not part of the plant’s

management during the time Tyson says it was having problems. Instead, Hithon

argues that the plant was not actually performing poorly during that time. The

parties dispute whether the plant was actually losing money. Almost all of the

witnesses, however, testified that the plant was performing poorly.

For example, Blake, the other African-American supervisor seeking a shift

manager position, testified that “the performance of the facility was terrible at the

time and . . . I knew we were losing money.” Blake testified that because of that

poor performance record, he knew that Hatley “would basically be looking to the

outside for a fresh set of eyes” for the shift manager positions and that Hatley

wanted someone who “wasn’t stagnated by what had been happening” at the

19
Gadsden plant. Blake also testified that when he interviewed for the shift manager

position, Hatley told him that the overall performance of the Gadsden plant would

hurt his chances of being promoted. Hatley testified that they “were under a

tremendous pressure to turn the plant around.” Even though he had sued the

company for not promoting him, Ash agreed in his testimony that in August or

September of 1995 a budget plan was in place and the company was trying to save

money at every turn. Tyson’s Complex Human Resources Manager, Richard

Trotter, testified that when Hatley took over as plant manager (as well as before

that time), the Gadsden plant was “not doing well.” Plant Human Resources

Manager Higgins testified that Hatley had told her “that Gadsden was not

producing well, that it wasn’t as efficient as it should be,” and she had been shown

some numbers on the Gadsden plant’s performance compared to other plants.

Dade testified that “[p]roduction-wise we were not doing well at all. I think we

were right down towards the bottom of the company.” He testified that Hatley had

expressed those concerns to him, and added that “our cost to produce a pound of

chicken was worse than almost all other plants of Tyson foods.”

Dale Carroll, the white shift manager during the period of poor performance

who quit after Hatley denied him a raise and whose slot was later filled by Dade,

testified that he personally did not believe that at the time Hatley took over as

20
manager the plant was in such bad shape that it needed “turning around.” But

even Carroll admitted that “[t]he plant in some areas was not performing where it

should be.” John Pittard, who was in charge of the plant as its manager from 1986

to 1994, testified that on his watch the plant was profitable “for the most part.”

That testimony, however, was based at least indirectly on Pittard’s assessment of

his own performance. It had little or nothing to do with Hatley’s perception of the

plant’s performance, which is all that counted. See Elrod v. Sears, Roebuck &

Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (in determining whether an employer

relied on legitimate nondiscriminatory reasons, we focus on the facts that the

employer believed to be true). In light of the mass of testimony to the contrary,

the testimony of Carroll and Pittard is not enough for a reasonable jury to have

found that Hatley did not believe that the plant was performing poorly when he

took over as plant manager.

And coupled with that mass of testimony there is one undisputed fact that

underscores how unreasonable it would have been for any factfinder not to find

that Tyson was concerned about poor performance at the plant. It is undisputed

that the two white plant managers whose departure opened up the King and Dade

slots left after they were denied wage increases, and it is undisputed that they were

denied wage increases because the plant was performing poorly. It would be

21
illogical to say that the plant was not performing poorly for purposes of filling two

manager positions that had become vacant because the plant was performing

poorly. Considering this and all of the other evidence presented, no reasonable

jury could have found that the plant was not performing poorly at the time that

Hithon, who had been in management there for years, was passed over in favor of

Dade, who was not associated with the plant and its problems.

2.

Hithon also contends that even if the plant was performing poorly at the

time the promotion decision was made, the evidence still showed that Tyson’s

stated reason of preferring someone not involved in the plant’s past management

was pretextual. Even though Hithon did not appeal the jury’s finding that there

was no racial discrimination in Hatley’s decision to fill the first shift manager slot

with King instead of Hithon, he does attempt to use some of the evidence

regarding that decision to show pretext concerning the stated reason for promoting

Dade to the second slot. Specifically, Hithon argues that the fact that Hatley did

not even interview him for the King slot until he had already decided to put King

in it shows pretext as to the stated reason for promoting Dade to the other slot.

The logical connection escapes us, but even assuming there is one, the evidence at

22
the retrial did not support the premise that Hatley interviewed Hithon for the King

slot only after it was too late.

When this case was here before and we were considering the evidence

presented at the first trial, we did conclude that at that trial “Hithon presented a

sufficient case of discrimination because he demonstrated that Hatley interviewed

him after Hatley had already hired King.” Ash II, 129 Fed. App’x at 534, vacated,

546 U.S. 454, 126 S.Ct. 1195 (2006), reinstated, Ash III, 190 Fed. App’x at

926–27. Hithon did not, however, present sufficient evidence to demonstrate that

at the retrial. The evidence at the retrial demonstrated just the opposite. Based on

all of the retrial evidence, including Hithon’s own testimony, no reasonable jury

could have found that Hithon was interviewed for the King slot after King already

had been hired, which undoubtedly explains the jury’s finding at the retrial that

Tyson did not discriminate against Hithon in filling that slot.

It is true that Hatley had notes in his day-timer indicating that: he

interviewed King on July 21, 1995; King accepted the shift manger position on

July 24; and then Hatley interviewed Hithon on July 25. If that evidence were

considered in isolation, a jury could reasonably infer from it that Hithon was never

actually considered for the King slot because Hatley did not interview him until

23
King already had been hired. There was, however, a lot of other evidence

presented about the timing issue.

Hatley explained his day-timer notes in his testimony at the retrial. He told

how he interviewed Hithon and Blake before he interviewed King, wrote his notes

about those interviews on a pad, and later transcribed them into his day-timer, with

the result that the July 25 date does not match the time that Hithon was actually

interviewed. Hatley testified that “the internal candidates, John [Hithon] and

James [Blake] both, made it known very quickly that they were interested in the

job. So their interviews came before anybody else’s did.” Blake, like Hithon, was

an African-American superintendent at the Gadsden plant and also applied for the

first shift manager position. He testified that Hatley interviewed him before

awarding the job to King. Blake also testified that he never felt that Hatley treated

him differently from anyone else because of his race.

In addition to the testimony of Hatley and Blake, Hithon’s own testimony

established that he had met with Hatley and discussed his interest in being

promoted to each of the shift manager positions before each one was filled. Even

though Hithon testified at the trial that he never had a “sit-down” meeting, or “an

interview at all,” with Hatley about either of the two shift manager positions, that

24
testimony was impeached with his earlier deposition testimony, in which he said

this about the King slot:

Q: You did get interviewed?

A. We sat down and we talked.

Q. Where?

A. In Mr. Hatley’s office.

* * *

Q. That was before Randy King was hired into that job or transferred into
that job?

A. Yes, sir.

Hithon also testified that he recalled talking in the hall with Hatley about

the second shift manager position to come open. Following that testimony at the

retrial, he was again reminded of his earlier deposition testimony. In his

deposition he was asked if he had spoken with Hatley about Tyson’s policy on the

college degree requirement, and he referred to his sit-down meeting with Hatley

about the Dade slot as an “interview”:

A. Not until I interviewed with — well, sat down and visited with
him about Steve Dade’s position.

Q. Okay. And when did you do that?

A. It was in 1995.

25
 Q. Was it before Dade got his job or after?

A. Yes, sir, before.

* * *

A. It was before [Dade] got the shift manager’s job.

In her closing argument, counsel for Hithon urged the jury to consider

Hatley’s day-timer notes as evidence of “a cover-up.” She argued: “Only after the

fact, after King accepts the job that he hand-picked, does [Hatley] feel the need to

only document the black guys.” When the jury considered that argument and

weighed all of the “interview” evidence, it found that there was no racial

discrimination involved in Hatley’s promotion of King instead of Hithon.3 In

making that finding the jury resolved in Tyson’s favor the conflicting testimony

about whether Hatley “interviewed” Hithon or just had “discussions” with him

about both of the shift manager positions, and it decided in Tyson’s favor the

dispute about how Hatley’s day-timer notes should be interpreted. Because there

3
As we have already mentioned, there were separate verdict forms for the King slot and
the Dade slot. The jury was specifically asked: “Do you, the jury, find that defendant
intentionally discriminated against the plaintiff (i.e., race was a substantial or motivating factor)
when the defendant awarded the shift manager’s position to Randy King?” The jury’s answer
was “no.” Because its answer to the first question was “no,” the jury did not reach the second
question on the verdict form, which asked if there was a mixed motive in the King promotion
decision: “Do you find that [the] defendant would have made the same promotion decision
without the unlawful motive of discrimination?” See Chambless v. La.-Pacific Corp., 481 F.3d
1345, 1348 (11th Cir. 2007) (explaining that the “‘mixed-motive’ defense . . . concedes that an
improper motive played a role in the employer’s action while asserting that another, valid reason
would have resulted in the same decision”).

26
is no dispute that the process itself and the interview facts were the same for both

slots (sit-down discussions with Hatley in his office before the slots were filled),

after finding that the process of filling the King slot did not evidence racial

discrimination, a reasonable jury could not have found that the same process did

evidence racial discrimination as to the Dade slot. The evidence about the

interview/discussion process was identical for the King slot and the Dade slot.

The very same conduct by a defendant toward the same person cannot be both

non-discriminatory and also discriminatory.

The verdict on the King slot therefore establishes that the interviews (or

discussions between Hatley and Hithon about the shift manager positions) did not

evidence discrimination as to the Dade slot either. See Technical Res. Servs., Inc.

v. Dornier Med. Sys., Inc., 134 F.3d 1458, 1464 (11th Cir. 1998) (“[I]t is the duty

of the courts to attempt to harmonize the answers, if it is possible under a fair

reading of them: ‘Where there is a view of the case that makes the jury’s answers

to special interrogatories consistent, they must be resolved that way.’” (quoting

Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666

(1963))). The jury’s verdict in favor of Hithon on the other slot, the one that went

to Dade, can stand, if at all, only if there was some other evidence that is sufficient

27
to support a finding of pretext as to its stated reason for promoting Dade over

Hithon. See Combs, 106 F.3d at 1538.

3.

Hithon also points to what he says were deviations from company hiring or

promotion procedures as evidence of pretext. We have some doubt about whether

that argument actually responds to Tyson’s stated reason that it picked Dade

because he, unlike Hithon, was not part of management during the time the plant

was performing poorly. Because Hithon has not pointed to anyone who should

have been considered for the Dade slot who had not been associated with the

plant’s management during that problem period, the procedures used to select

Dade may well be irrelevant. Deviation from an employer’s ususal hiring or

promotion policies may be relevant as circumstantial evidence that it had a

preordained, perhaps discriminatory, result in mind. However, that line of

reasoning probably works only if the procedural variance operates to exclude from

consideration a candidate who meets the employer’s substantive criteria. In other

words, an employer has no motive to ignore or violate its own procedures to reach

a decision if its substantive criteria would compel the same decision if those

procedures were followed. Because no black candidate, including Hithon, met the

substantive criterion of not having been in the plant’s management during the

28
problematic period, any failure of Tyson to follow its usual procedures in filling

the Dade slot cannot have been motivated by a desire to discriminate against

blacks. It cannot, therefore, be evidence that the substantive criterion is

pretextual.

Even assuming, however, that a variance from company procedures could

be evidence of pretext when we know that the same result would have been

reached anyway given the substantive criterion, Hithon’s argument still fails

because it has no evidentiary basis. Hithon asserts that Tyson did not post the job

vacancies for the shift manager positions even though, he says, the company

should have done so under its procedures. Hithon does not, however, contend that

the failure to post the vacancies operated to his disadvantage in any way. He

testified that he knew about the open shift manager positions and discussed with

Hatley his desire to be promoted before either King or Dade had been given the

job. Not only that, but Human Resources Manager Higgins testified:

Back then, in ‘95, some positions we posted and some we did not.
And normally if it was an internal thing, it was—everybody knew that
somebody had left and that there was a vacancy. So, you know, you
would go to that department head and you would just let them know
that you were interested.

Higgins also testified that “normally if [the open position] was internal and we had

somebody in there that could do the job that we felt was qualified, we would just

29
normally transfer that person into that position.” That is what happened with

Dade.

Hithon also asserts that Tyson had a seniority policy and a salary

administration plan that required preferential treatment for internal applicants, and

that those requirements were disregarded. It is undisputed that Hithon had worked

for Tyson for thirteen years, and Dade had worked for the company for about two,

so Hithon did have seniority. The variance from that usual internal seniority

policy, however, is consistent with Tyson’s proffered reason for choosing Dade in

the first place—Hatley wanted to put people in the shift manager slots who had not

been managing the plant when it was performing poorly. To meet that objective,

he had to choose people with less seniority at the Gadsden plant. And there was

no evidence that the seniority policy was invariably followed. As for being an

internal applicant, it is undisputed that Dade had been working in the Gadsden

plant for three months as maintenance supervisor when he was promoted to shift

manager, and before that he had worked at Tyson’s Boaz plant for two years. So,

Dade’s promotion was an “internal” one. It was his good fortune to be at the plant

when the slot needed to be filled but not to have been there long enough to be

considered part of its management during the years the plant had performance

problems.

30
 Hithon asserts that Tyson varied from its usual hiring and promotions

procedures because Dade did not meet the requirements for the shift manager

position that were set forth in a written job summary. It required three to five

years experience. Dade only had about two years of poultry processing

experience. The shift manager job summary, however, did not specify that the

“experience” required for the job had to be in poultry processing. It simply said:

“Experience: 3–5 yrs.” And Dade had many more years than that of management

and leadership experience (as well as a Master’s degree in management and human

relations), so he met and exceeded the experience requirement set out in the job

summary.

Finally, Hithon points to evidence that Dade was not interviewed by the

human resources manager before being selected. Higgins, who was the human

resources manager, did testify that: “My biggest concern was that I didn’t have an

opportunity to talk with them. And pretty much the way it was done, [King and

Dade] were just brought in. And I was basically—or we were basically told, you

know, they had been hired as the shift managers.” Higgins’ “concern” is not,

however, the same thing as a company requirement. While there was evidence that

Higgins usually participated in hiring decisions, there was no evidence that she

invariably did so or that company policy required that she be given input into all

31
promotion decisions or those at the shift manager level. Higgins did not testify,

for example, that she had any input at all in the selection of those who had filled

the two slots before King and Dade.

Even if there were some evidence of variation from Tyson’s usual hiring or

promotion policies or procedures, standing alone that would not evidence racial

discrimination. See Mitchell v. USBI Co., 186 F.3d 1352, 1355–56 (11th Cir.

1999) (per curiam) (“Even assuming that USBI did deviate from its policy, this

deviation does not raise an inference of discrimination. Standing alone, deviation

from a company policy does not demonstrate discriminatory animus.”). Here, the

closest thing to a variance from Tyson’s usual policies or procedures that a

factfinder reasonably could find is that the company did not fill the slot with the

candidate who had the greatest seniority. As we have already explained, however,

there was no evidence that seniority was anything more than a preference, or that it

was to trump all other considerations.

Instead, the evidence established beyond any genuine dispute that the

overriding consideration used in filling the two open slots was that the person

selected be free of the taint of having been part of the plant’s management during

the period it had performed poorly. The poor performance period is, after all, what

led to the slots becoming open in the first place when the two white employees

32
who had filled them during that period were denied raises and left. As Blake

testified, Hatley was “looking to the outside for a fresh set of eyes” for the shift

manager positions because he wanted someone who “wasn’t stagnated by what

had been happening” at the Gadsden plant.

4.

Hithon also argues that his superior qualifications for the shift manager job

show that Tyson’s proffered reasons for promoting Dade instead of him are

pretextual. In Ash III this Court held that Hithon did not meet the Cooper

standard for comparative qualifications. See Ash III, 190 Fed. App’x at 927 (“On

this record, we conclude that the plaintiffs did not meet their burden under

Cooper to show that the disparities 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 judgment, could have chosen the

candidate selected over the plaintiff for the job in question.’” (quoting Cooper,

390 F.3d at 732, overruled on other grounds by Ash, 546 U.S. at 456–57, 126

S.Ct. at 1197)). Tyson argues that in the second trial Hithon presented no new or

different evidence about the disparities between his qualifications and Dade’s, so

the Ash III holding on comparative qualifications still stands. Because our

33
examination of the record confirms that, we stick by the conclusion we reached in

Ash III, which probably is law of the case anyway.4

5.

Finally, the testimony about the two occasions when Hatley used the term

“boy” was not enough evidence to create a jury issue as to whether Tyson’s

proffered reason for choosing Dade was a pretext for racial discrimination.5 In

Ash III we applied the factors set forth by the Supreme Court to the evidence on

the record before us at that point, and we concluded that “the [‘boy’] 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.” 190 Fed.

4
The evidence about comparative qualifications is such that one of Tyson’s proffered
reasons for selecting Dade instead of Hithon is that Dade was more qualified for the position.
Tyson argues that in light of the evidence about qualifications it is also entitled to judgment as a
matter of law on that ground. In light of our decision that Hithon did not create a genuine issue
of pretext about Tyson’s stated reason of wanting someone who had not been associated in a
managerial capacity with the plant when it was performing poorly, we need not decide whether
Tyson would be entitled to judgment on its comparative qualifications reason as well. A
defendant is entitled to judgment as a matter of law if the plaintiff fails to create a genuine issue
of material fact as to any one of the proffered reasons. Chapman, 229 F.3d 1012, 1024–25;
Combs, 106 F.3d at 1543.
5
In its brief to this Court, Tyson also contends that the district court’s decision to admit
testimony about the use of the word “boy” was an abuse of discretion that warrants a new trial.
At oral argument, however, counsel for Tyson agreed that this issue had been waived because
counsel made a strategic decision to forego a mistrial on that basis.

34
Appx. at 926. Under the law of the case doctrine only if “new and substantially

different evidence emerge[d] at [the second] trial,” Schiavo ex rel. Schindler v.

Schiavo, 403 F.3d 1289, 1292 (11th Cir. 2005) (quotation marks omitted), can we

revisit that conclusion of law. See id. New and substantially difference evidence

about the use of the word “boy” was not presented at the retrial.

Hithon’s counsel elicited this testimony from Ash about one instance in July

1995 (before the promotion decisions at issue) when Hatley used the word “boy”

when talking to Ash:

A. . . . . [I]t was break time, it was lunch time. And we were just
sitting in the cafeteria having lunch. And Mr. Hatley walks up
to the table without saying anything, but he just said, “Boy, you
better get going.” So I looked at him. I was shocked that he
said it, because, you know, I felt like he said it in a mean and
derogatory way.

* * *

Q. And why was that offensive to you?

A. Because the “boy” word is offensive.

* * *

Q. Can you explain to the ladies and gentlemen of the jury why
that comment was offensive to you, Mr. Ash?

A. Because, you know, being in the South, and everybody know
being in the South, a white man says boy to a black man, that’s an
offensive word.

35
 Q. What do you equate that to, using the word “boy” to a black
man?

A. I equate that to just a racial comment because you might as well
use the “N” word if you are going to say that.

Q. He might as well have walked up and said “nigger” to you;
right?

A. Yeah.

[Counsel for Tyson]: I object to that, Your Honor. That is so out of line.

The Court: I sustain the objection.

* * *

The Court: You’re leading the witness.

[Counsel for Tyson]: That’s a misleading question. That’s the interjection
of a word in this case that has never been in it.

The Court: The question was improper because it was leading the witness,
suggesting an answer.6

* * *

Q. Who made a comment back [to Hatley]?

A. My wife.

6
We agree. The question was also highly improper because through it counsel for Hithon
interjected the emotionally charged “N” word into the trial, a word that there was no evidence at
all that Hatley or anyone else at the plant ever used. This misconduct by Hithon’s counsel may
explain why the jury returned a verdict in his favor, even though there was insufficient evidence
to support it. We need not speculate about that, though, because the judgment is due to be
reversed for evidentiary insufficiency anyway.

36
 Q. What did she say?

A. She said, “He’s not a boy. He’s a man.”

Ash’s wife also testified about that incident, stating that Hatley “just looked at

[her] with a smirk on his face like it was funny and then he walked off.” Hithon

testified that sometime after May but before July 1995 he heard Hatley said “hey,

boy” as Hithon was leaving a conference room.7 All of the testimony at retrial

about the use of the word “boy” was basically the same evidence that was

presented in the first trial. The only additional evidence presented at the retrial

was Ash’s and Hithon’s testimony about how and why the use of the term “boy” is

offensive to them, but the issue is not what was in their mind when they heard the

term but what was in Hatley’s mind when he used it, and there was no new

evidence about that. The evidence presented at the second trial was not “new and

substantially different,” Schiavo, 403 F.3d at 1292, enough for us to revisit the

conclusion of law made in our Ash III decision after the Supreme Court’s remand.

We reiterate that conclusion as part of the law of the case.

III.

7
Hithon testified: “More than likely we were talking about numbers of some kind. And
as I was leaving, [Hatley] said, ‘Hey, boy.’ And I hesitated, but I continued to walk.”

37
 Viewing the evidence as a whole in the light most favorable to Hithon, see

Goldsmith, 513 F.3d at 1275, a reasonable jury could not have found that racial

discrimination was the real reason for Hatley’s decision to promote Dade instead

of Hithon. The district court erred by refusing to grant Tyson’s motion for

judgment as a matter of law based on the sufficiency of the evidence to support a

finding of intentional discrimination.

Because we conclude that the evidence was insufficient to support the jury’s

verdict that Tyson intentionally discriminated against Hithon based on his race

when Hatley promoted Dade, we need not reach the other issues the parties have

raised. The judgment of the district court is REVERSED, and the case is

REMANDED for entry of judgment in favor of Tyson.

38
DOWD, District Judge, dissenting:

I respectfully dissent. Two juries have found the issues in favor of the

plaintiff Hithon and granted both compensatory and punitive damages. In my

view, the record supports an affirmance of the second jury verdict as to

compensatory damages. With respect to punitive damages, the record also

supports a conclusion that a punitive damages award is justified, but in my view,

the amount of punitive damages awarded by the jury is excessive.

As a consequence, I would affirm the award of compensatory damages and

return the case to the district court for a new trial on punitive damages, unless the

plaintiff accepts a remittitur.

39