Free Statement - District Court of Colorado - Colorado

Case 1:04-cv-01009-EWN-MEH

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PELA POINTERS #8-2
Plaintiff Employment Lawyers Association
Colorado Chapter of the National Employment Lawyers Association with Case Summaries

Charlotte Sweeney, President (303) 388-4551 Rhonda Rhodes, Vice-President (303) 220-0303

Stephanie Struble, Treasurer (303) 753-9000 Cheri Vandergrift, Secretary (303) 271-0222

PELA Pointers is compiled and edited by Stefan Kazmierski at [email protected] MARCH LUNCHEON ­ Magistrate Judge Coan will be speaking at the March 24 meeting at the Blair Caldwell Library large conference room at 2401 Welton St. Judge Coan is a former member of PELA and her presentations are always informative and entertaining. CLE credit applied for. MEMBER VICTORY Sandy Karp reports a victory at the 10th Circuit in Giannola v Aspen/Pitkin County Housing Authority, No. 05-1195 (10th Cir. 2/7/06) where Magistrate Judge Shaffer, ruling on consent of the parties, dismissed this breach of employment contract case on summary judgment. Plaintiff was told she had a fiveyear position and was given a letter describing her compensation for a "five-year position." The employment handbook later informed her she was an at-will employee, however. Judge Shaffer dismissed the claims finding that there was no meeting of the minds on the term of employment. The 10th Circuit found that there was a jury question as to whether a five-year contract term was created. Congratulations to Sandy (I have a copy of the Order and can send it if you email me). CASE SUMMARIES A unanimous Supreme Court in Ash v. Tyson Foods, No. 05-367 (U.S. 2/21/06) summarily reversed the 11th Circuit, and in no uncertain terms, found that the appellate court's formulation of the Title VII burden of proof was wrong. The Court did not hear oral argument in the case, but rather decided the case on the basis of the cert petition, without the benefit of a full briefing on the merits. Although the Court did not articulate what the proper burden of proof is, it concluded that the 11th Circuit's requirement that pretext can only be established when "the disparity in qualification is so apparent as virtually to jump of the page and slap you in the face" was "unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications." The successful cert petition was filed by NELA members Alicia Haynes and Professor Eric Schnapper. http://scotus.ap.org/scotus/05-379p.zpc.pdf In Coldesina v. Estate of Simper, No. 04-4006 (10th Cir. UT 05/20/05), a suit involving theft from an ERISA plan, the district court erred in dismissing plaintiffERISA plan administrator's claims against defendantaccountants based on their status as ERISA fiduciaries. These individuals prepared the plan's financial statements, received plan contributions, remitted funds, and prepared promissory notes for plan loans to participants and tracked the balances of those loans. Thus, there are two possible grounds for finding that they functioned as plan fiduciaries: First, their involvement in plan administration, and second, their control over plan assets. However, claims against other entities for negligent supervision and vicarious liability are the subject of state agency and tort law and are preempted by ERISA. http://www.kscourts.org/ca10/cases/2005/05/044006.htm In Hussein v. Regents of the University of Colorado, No. 03CA2121 (Colo.App. 05/16/05), Hussein appeals two orders of the State Personal Board denying his petition for a hearing in connection with his claim for unlawful termination by the University of Colorado at Colorado Springs. Hussein filed an appeal with the Board, alleging his termination was unlawful because the University discriminated against him based on his national origin. The Board referred the appeal to the CCRD and CCRD found no probable cause to support Hussein's discrimination allegations. Hussein appealed this finding to the Board, which issued a notice of preliminary review to determine whether to grant a hearing. An ALJ issued a preliminary recommendation that Hussein's petition for hearing be denied and the Board adopted the recommendation. Hussein then filed exceptions to the ALJ's preliminary recommendation, which the Board also denied. Hussein filed his notice of appeal better than 45 days after the Board originally adopted the ALJ recommendation. The Court found the appeal was not timely filed since there was no statutory authority for filing exceptions and that the time for filing a notice of appeal was not tolled. http://www.cobar.org/opinions/opinion.cfm?OpinionID =5137

Case 1:04-cv-01009-EWN-MEH

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Cite as: 546 U. S. ____ (2006) Per Curiam

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SUPREME COURT OF THE UNITED STATES
ANTHONY 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. 05­379. Decided February 21, 2006

PER CURIAM. Petitioners Anthony Ash and John Hithon were superintendents at a poultry plant owned and operated by respondent Tyson Foods, Inc. Petitioners, who are AfricanAmerican, sought promotions to fill two open shift manager positions, but two white males were selected instead. Alleging that Tyson had discriminated on account of race, petitioners 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 plaintiffs' 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 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). App. to Pet. for Cert. 35a; see generally Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U. S. ___, ___ (2006) (slip op., at 4­11) (discussing Rule 50). The United States Court of Appeals for the Eleventh Circuit 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 evidence insufficient to show pretext (and thus insufficient to show unlawful discrimination) under the burdenshifting framework set forth in McDonnell Douglas Corp. v.

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ASH v. TYSON FOODS, INC. Per Curiam

Green, 411 U. S. 792 (1973). 129 Fed. Appx., at 533­534. 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 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. 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 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

Case 1:04-cv-01009-EWN-MEH

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Cite as: 546 U. S. ____ (2006) Per Curiam

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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 in the 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, 187­188 (1989) (indicating a plaintiff "might seek to demonstrate that respondent's claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the 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 employer'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 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

Case 1:04-cv-01009-EWN-MEH

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ASH v. TYSON FOODS, INC. Per Curiam

"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" (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 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, 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 here determined 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.