Supreme Court Slaps 11th Circuit in the face.

Yesterday in Ash v. Tyson Foods, 546 U.S. ___ (Feb. 21, 2006), the U.S. Supreme Court slapped down the 11th Circuit for (1) still trying to hold on to the ridiculous "stray remarks" doctrine and (2) ruling that comparative qualifications between a plaintiff and there person actually hired or promoted cannot support a finding of pretext unless "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." (Well, isn't that precise.)If the 11th Circuit wanted someone to slap them (and I know we all would like to slap that Circuit sometimes) the Supremes were happy to oblige.

First the facts: Petitioners Anthony Ash and John Hithon were superintendents at a poultry plant owned and operated by respondent Tyson Foods, Inc. Petitioners, who are African-American, sought promotions to fill two open shift manager positions, but two white males were selected instead. Alleging that Tyson had count of race, petitioners sued under 1981 and Title VII. Summary Judgment was denied and the jury found in favor of the Plaintiffs. The trial court then granted the Defendant's motion to dismiss under Rule 50(b). The 11th Circuit affirmed the grant as to one Plaintiff b/c it found no evidence of pretext.

The Supreme Court reversed the 11th Circuit. With regard to stray remarks, the Court disagreed with the 11th Circuit that the word "boy" can never be evidence of discriminatory animus unless it is modified by another word like "black". (No, I'm not kidding. They said this.)With regard to comparative qualifications, the Court found the 11th Circuit's "Jump off the Page" standard less than helpful. Importantly, the Court held that it was sufficient for the Plaintiffs to show that "their qualifications were superior to those of the two successful applicants." The Court then fell over itself to state that this case should not be held out as the "standard" for such cases and that it was not taking this opportunity to set the standard. (Thus rendering this case less than helpful to everyone not directly involved with . . . this case.)It should be noted however that the Court seemed to single out the 9th Circuit's formulation of this particular standard - "qualifications evidence standing alone may establish pretext where the plaintiff's qualifications are "clearly superior' to those of the selected job applicant" - with approval.

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