Wage Law

Once again, we go slightly off topic and into the broader subject of employment decisions in general. We were disheartened by the apparent pro-employer views of Justice Roberts, but were somewhat encouraged when the first case decided by the Roberts court was a pro-worker wage and hour decision in the IBP case. We were similarly disheartened by Justice Alito's apparently similar pro-employer views, and were also somewhat encouraged by his last 3rd Circuit decision. Now, the first employment law case decided by the Roberts court with Justice Alito has been handed down, and it was an interesting per curiam decision favoring workers.

On February 21, 2006, in Ash v. Tyson Foods, Inc., the court remanded a case to the 11th Circuit for further review of its holding that a verdict in favor of two employees was correctly vacated.

Petitioners Anthony Ash and John Hithon, both African-Americans, were superin­tendents at a poultry plant owned and operated by re­spondent Tyson Foods, Inc. in Alabama. They sought promotions to shift manager positions, losing out to two white males. They sued for race discrimination.

At the close of the plaintiffs’ evidence, Tyson moved for judgment as a matter of law. The District Court denied the motion, and the jury found for petitioners, awarding compensatory and punitive damages. The em­ployer renewed its motion for judgment under Rule 50(b).The District Court granted the motion and, in the alterna­tive, ordered a new trial as to both plaintiffs under Rule 50(c). The employees appealed, and the 11th Circuit affirmed in part and reversed in part. 129 Fed. Appx. 529, 536 (2005) (per curiam). As to Ash, the court found the trial evidence insufficient to show pretext. As to Hithon, the court reversed, finding there was enough evidence to go to the jury. The court, however, affirmed the District Court’s alternative remedy of a new trial under Rule 50(c), holding that the evidence supported neither the decision to grant punitive damages nor the amount of the compensatory award, and thus that the District Court did not abuse its discretion in ordering a new trial. The Supreme Court disagreed.

"[T]he Court of Appeals erred in two respects, requiring that its judgment now be vacated and the case remanded for further consideration.

First, there was evidence that Tyson’s plant manager, who made the disputed hiring decisions, had referred onsome occasions to each of the petitioners as “boy.” Peti­tioners argued this was evidence of discriminatory ani­mus. The Court of Appeals disagreed, holding that “[w]hile the use of ‘boy’ when modified by a racial classifi­cation like ‘black’ or ‘white’ is evidence of discriminatory intent, the use of ‘boy’ alone is not evidence of discrimina­tion.” Id., at 533 (citation omitted). 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.

Second, the Court of Appeals erred in articulating the standard for determining whether the asserted non­discriminatory reasons for Tyson’s hiring decisions were pretextual. Petitioners had introduced evidence that their qualifications were superior to those of the two successful applicants. (Part of the employer’s defense was that the plant with the openings had performance problems and petitioners already worked there in a supervisory capac­ity.) The Court of Appeals, in finding petitioners’ evidence insufficient, cited one of its earlier precedents and stated: “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 inthe face.’ ” Ibid. (quoting Cooper v. Southern Co., 390 F. 3d 695, 732 (CA11 2004)).

Under this Court’s decisions, qualifications evidence may suffice, at least in some circumstances, to show pre­text. See Patterson v. McLean Credit Union, 491 U. S. 164, 187–188 (1989) (indicating a plaintiff “might seek to demonstrate that respondent’s claim to have promoted abetter qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen forthe position”), superseded on other grounds by 42 U. S. C. §1981(b); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 259 (1981) (“The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liabil­ity, although this may be probative of whether the em-ployer’s reasons are pretexts for discrimination”); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 148 (2000) (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s as­serted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated”).

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 inferringpretext from superior qualifications. Federal courts, including the Court of Appeals for the Eleventh Circuit in a decision it cited here, have articulated various other standards, see, e.g., Cooper, supra, at 732 (noting that “disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise ofimpartial judgment, could have chosen the candidateselected over the plaintiff for the job in question” (internalquotation marks omitted)); Raad v. Fairbanks North Star Borough School Dist., 323 F. 3d 1185, 1194 (CA9 2003) (holding that qualifications evidence standing alone may establish pretext where the plaintiff’s qualifications are “ ‘clearly superior’ ” to those of the selected job applicant); Aka v. Washington Hospital Center, 156 F. 3d 1284, 1294 (CADC 1998) (en banc) (concluding the factfinder may infer pretext if “a reasonable employer would have found the plaintiff to be significantly better qualified for thejob”), and in this case the Court of Appeals qualified its statement by suggesting that superior qualifications may be probative of pretext when combined with other evi­dence, see 129 Fed. Appx. at 533. This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today’s decision, furthermore, should not be read to hold that petitioners’ evidence necessarily showed pretext. The District Court concluded otherwise. It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results.

The Court of Appeals should determine in the first instance whether the two aspects of its decision heredetermined to have been mistaken were essential to its holding. On these premises, certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

So there you have it -- another pro-worker opinion from the Roberts Court.