ASH et al. v. TYSON FOODS, INC.

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454 OCTOBER TERM, 2005
Syllabus
ASH et al. v. TYSON FOODS, INC.
on petition for writ of certiorari to the united states
court of appeals for the eleventh circuit
No. 05–379. Decided February 21, 2006
African-American petitioners Ash and Hithon filed suit, alleging that re
spondent Tyson Foods, Inc., violated 42 U. S. C. § 1981 and Title VII of
the Civil Rights Act of 1964 when it promoted two white males to fill
shift manager positions sought by petitioners. At the close of petition
ers’ evidence, the District Court denied Tyson’s motion for judgment as
a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The
jury found for petitioners. After trial, Tyson renewed its motion under
Rule 50(b). The District Court granted that motion and, in the alterna
tive, ordered a new trial under Rule 50(c). The Eleventh Circuit af
firmed the grant of the Rule 50(b) motion as to Ash, deeming the trial
evidence insufficient to show pretext, but reversed as to Hithon, finding
enough evidence to go to the jury. It also affirmed the District Court’s
Rule 50(c) remedy.
Held: While the Eleventh Circuit’s judgment may be correct in the final
analysis, the court (1) erred insofar as it held that modifiers or qualifica
tions are necessary to render the term “boy,” which the plant manager
used to refer to petitioners, probative of bias, and (2) erred with regard
to its standard for determining whether Tyson’s asserted nondiscrimina
tory reasons for its hiring decisions were pretextual after petitioners
showed that their qualifications were superior to those of the successful
applicants. Although the term “boy” will not always be evidence of
racial discrimination, it does not follow that “boy,” standing alone, is
always benign. The speaker’s meaning may depend on various factors
including, e. g., context and inflection. In addition, the Eleventh Cir
cuit’s statement that “[p]retext 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 in the face’ ” is unhelpful and
imprecise as an elaboration of the standard for inferring pretext from
superior qualifications. This is not an occasion to define more precisely
what standard should govern. It suffices to say here that some formu
lation other than the Circuit’s test would better ensure that trial courts
reach consistent results. That court should determine in the first in
stance whether the two erroneous aspects of its decision were essential
to its holding.
Certiorari granted; 129 Fed. Appx. 529, vacated and remanded.

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455 Cite as: 546 U. S. 454 (2006)
Per Curiam
Per Curiam.
Petitioners Anthony Ash and John Hithon were superin
tendents at a poultry plant owned and operated by respond
ent Tyson Foods, Inc. Petitioners, who are African-
American, sought promotions to fill two open shift manager
positions, but two white males were selected instead. Al
leging that Tyson had discriminated on account of race, peti
tioners sued under Rev. Stat. § 1977, 42 U. S. C. § 1981, and
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U. S. C. § 2000e et seq.
A trial proceeded in the United States District Court for
the Northern District of Alabama. At the close of the plain
tiffs’ evidence, Tyson moved for judgment as a matter of law,
see Fed. Rule Civ. Proc. 50(a). The District Court denied
the motion, and the jury found for petitioners, awarding com
pensatory 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). App. to Pet. for
Cert. 35a; see generally Unitherm Food Systems, Inc. v.
Swift-Eckrich, Inc., ante, at 399–406 (discussing Rule 50).
The United States Court of Appeals for the Eleventh Cir
cuit affirmed in part and reversed in part. 129 Fed. Appx.
529, 536 (2005) (per curiam). As to Ash, the court affirmed
the grant of the Rule 50(b) motion, deeming the trial evi
dence insufficient to show pretext (and thus insufficient to
show unlawful discrimination) under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U. S. 792 (1973). 129 Fed. Appx., at 533–534. As to
Hithon, the court reversed the Rule 50(b) ruling, 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 sup
ported neither the decision to grant punitive damages nor
the amount of the compensatory award, and thus that the

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456 ASH v. TYSON FOODS, INC.
Per Curiam
District Court did not abuse its discretion in ordering a new
trial. Id., at 536.
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.
First, there was evidence that Tyson’s plant manager, who
made the disputed hiring decisions, had referred on some
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 al
ways 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 quali
fications 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 nondiscrimi
natory 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 Ap
peals, 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

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457 Cite as: 546 U. S. 454 (2006)
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and slap you in the face.’ ” Ibid. (quoting Cooper v. South
ern 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 a better qualified appli
cant was pretextual by showing that she was in fact better
qualified than the person chosen for the position”), super
seded 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 mis
judged the qualifications of the applicants does not in itself
expose him to Title VII liability, although this may be proba
tive of whether the employer’s reasons are pretexts for dis
crimination”); 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 impre
cise as an elaboration of the standard for inferring pretext
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 quali
fications must be of such weight and significance that no rea
sonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over the plaintiff for the
job in question” (internal quotation 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

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458 ASH v. TYSON FOODS, INC.
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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 the
job”), 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, further
more, 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 in
stance whether the two aspects of its decision here deter
mined 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.
It is so ordered.