[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 2, 2006
No. 04-11695
THOMAS K. KAHN
CLERK
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:
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 seq. (“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 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In an unpublished decision, we affirmed the district court’s alternative grant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 discrimination. 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
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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 judgment, and remanded the case for further
consideration. Specifically, the Supreme Court found fault with our partial
reliance on an articulation of the comparative qualifications standard as one where
pretext is shown only when the disparity in qualifications is so apparent as to
virtually “jump off the page and slap you in the face.” It also instructed that this
court erred by concluding that the use of “boy” alone is not evidence of racial
discrimination unless accompanied by racial qualifiers when evaluating whether
such references to plaintiffs were evidence of racial bias. Ash v. Tyson Foods,
Inc., 126 S. Ct. 1195 (2006).
The Supreme Court remanded the case to us with instructions to determine
whether these two findings were essential to our holding and to determine if the
standards written more appropriately would change the ultimate finding. The
Supreme Court specifically cautioned that its decision should not be read to hold
that petitioners’ evidence necessarily showed pretext.
II.
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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 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
evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000) (citation omitted). “[A] motion
for judgment as a matter of law will be denied only if reasonable 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.I.C. v. Stahl, 89 F.3d 1510, 1514 (11th Cir. 1996). The district court should
grant a motion for a new trial when
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the verdict is against the clear weight of the evidence or will result in
a miscarriage of justice, even though there may be substantial
evidence which would prevent the direction of a verdict . . . .
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
evidentiary grounds unless, at a minimum, the verdict is against the
great – not merely the greater – weight of the evidence.
Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th
Cir. 2001) (internal citations and quotation omitted).
III.
The Supreme Court held that the word “boy” used without modification was
“not always benign” and could be evidence of racially discriminatory intent. The
Court listed five non-exclusive factors which may indicate whether the word is
evidence of racial animus – “context, inflection, tone of voice, local custom and
historical usage.” Ash, 126 S. Ct. at 1197.
After reviewing the record, we conclude once again that the use of “boy” by
Hatley was not sufficient, either alone or with the other evidence, to provide a
basis for a jury reasonably to find that Tyson’s stated reasons for not promoting
the plaintiffs was racial discrimination. The usages were conversational and as
found by the district court were non-racial in context. But even if somehow
construed as racial, we conclude that the comments were ambiguous stray remarks
not uttered in the context of the decisions at issue and are not sufficient
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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.”
There was insufficient evidence of bias in the circumstances of this case to
overcome the articulated reasons for Hatley’s decision, which was that the selected
applicants were not associated with the prior poor performance of the plant, they
had demonstrated leadership and management skills, they had superior
recommendations, and they had experience in the poultry industry at more than
one Tyson plant. The only negative – King’s lack of a college degree – made him
equally, but not less, qualified educationally than the plaintiffs. Thus, we
conclude that the “boy” comments, with the other evidence presented, do not
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provide a reasonable basis for a finding of racial discrimination 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,
___ U.S. ___, 126 S. Ct. 478 (2005), to-wit: “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.” Ash, 126 S. Ct. at 1197.
The “jump off the page test” was not essential to this court’s initial
conclusion that the comparative qualifications 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
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Jefferson County, Al, 446 F.3d 1160 (11th Cir. 2006); Watkins v. City of
Huntsville, (No. 04-15607) (11th Cir. Apr. 18, 2006); Roper v. City of Foley
Police Dept., (No. 05-15199) (11th Cir. Apr. 18, 2006); Price v. M&H Valve Co.,
(No. 05-15205) (11th Cir. Apr. 7, 2006). In these cases, comparative
qualifications and other alleged indicia of discrimination (i.e., subjective criteria
used by the decision-maker, plaintiff’s belief that his (or her) qualifications 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 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.” 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
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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.
AFFIRMED in part, REVERSED and REMANDED in part.
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