Slapping Down Lower Courts
posted by Dave Hoffman
The Supreme Court has said, more than once, that it does not sit to review opinions, but rather judgments. See, e.g., Chevron USA v. Natural Resources Defense Council, 467 US 837, 842 (1984). But via a colleague, I just read February’s Ash v. Tyson Foods, which seems to offer a somewhat contrary (and fun) view. Ash is an employment decision case arising from the Eleventh Circuit. The plaintiffs (two African-American supervisors) won before a jury but lost on a variety of post-trial and appellate motions.
The Court’s short (4-page) per curium opinion reversed and remanded, even though it states that “[t]he judgment of the Court of Appeals, and the trial court rulings it affirmed, may be correct in the final analysis.” What, then, required intervention? First, the Court held that use of the word “boy” to refer to plaintiff may suggest animus given linguistic context, even in the absence of other racially charged language. More interestingly, however, SCOTUS criticized the Eleventh Circuit for its using particular language when determining whether asserted termination reasons were pretextual. The Eleventh Circuit had held that “Pretext can be established through comparing qualifications only when the disparity in qualifications is so apparent as to virtually jump off the page and slap you in the face.” This vivid phrasing irritated the Court, which held:
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. . . 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.
Weird result. What is wrong with the “slap you in the face” test? I just don’t see how it is less precise than phrases like “shocks the conscience,” “reasonable person,” or “deliberate indifference.” Is the lesson here, for Circuit Courts, that opinions that sound more legal are less likely to face review? Hmm. Perhaps we can see Ash as a datapoint in a new trend against the pressures to make opinions more marketable that I talked about here?
April 10, 2006 at 7:36 pm
Posted in: Supreme Court
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Responses (7)
bjr - April 10, 2006 at 9:03 pm
The Raad decision, cited by the Court on the final page of its opinion, is more directly on point than the Court lets on. In Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185 (9th Cir. 2003), the 9th Circuit reversed and remanded the district court’s grant of summary judgment on basically the same grounds, explicitly rejecting the “virtual slap in the face” test for pretext based on superior qualifications in favor of a “clearly superior” test.
Although I agree with Dave that the “clearly superior” standard is not more precise than the “virtual slap in the face” or “no reasonable person” tests, I think that it’s important to recognize the different costs that the use of each phrase imposes on the court. For example, “clearly superior” seems to be something less than a virtual slap in the face – as the Court’s opinion seems to recognize implicitly. Understood as such, the Court’s real criticism is not that the “virtual slap in the face” test is unhelpful and imprecise, but that it requires judges to take extreme linguistic stands and in turn places too great a burden on plaintiffs to prove pretext through superior qualifications.
Scott Moss - April 11, 2006 at 9:12 am
There’s some important background here: twice in the 5 years preceding Ash, the Court had to issue 9-0 decisions to redress the problem of some (many) circuits being too quick to dismiss employment discrimination claims. In both prior cases (Reeves in 2000 and Desert Palace in 2003), circuits pretty much invented budens of proof that were ridiculously hard for plaintiffs to meet (e.g., a rule unique to discrimination cases that circumstantial evidence is insufficient to meet the plaintiff’s burden).
In this light, “slap you in the face” wasn’t just odd language; it was a standard adopted by some circuits and rejected by others (this was a major circuit split) that a jury couldn’t infer discrimination from a showing that the person hired was noticeably less qualified than the plaintiff.
Thus, Ash is the third recent unanimous decision by the Court “slapping” down rogue circuits; as the Court consistently has had to explain, those circuits had been imposing burdens on discrimination plaintiffs that were inconsistent with both the statute and basic evidentiary rules.
As I said in a talk after one of these decisions: “circuits, when THIS Court is ruling unanimously that you’re too hard on plaintiffs, you know you’re out to lunch.”
Dave Hoffman - April 11, 2006 at 9:21 pm
Scott and BJR: Thanks for the helpful background info.
Scott Moss - April 12, 2006 at 12:51 pm
No prob. Now c’mere so I can slap you in the face, big boy.
*ha* oh my - April 12, 2006 at 1:07 pm
?? … uhm, *cute*
Eh Nonymous - April 13, 2006 at 4:21 pm
I would humbly suggest that what was criticized was neither the judgment nor the wording of the opinion, but rather, as Scott suggests, the standard employed – a legal ruling on the way to the judgment itself.
Although I see the view that “clearly superior” isn’t different from “slap in the face,” I disagree that they would be the same in practice.
Defendants: Sure, the person hired was clearly inferior. But it doesn’t slap you in the face with how inferior their qualifications were. You had to read carefully.
Court: Good point! The 11th Circuit said it’s got to slap you! Dismissed!
Clear suggests to me that when you look at it, you can detect it.
Slap in the face means that it reaches out and assaults you. Big bold letters. More than mere text? Outrageous obviousness?
Interesting ruling by SCOTUS, interesting post, disagree that this slapdown was unwarranted.
bjr - April 13, 2006 at 6:39 pm
The Ash Court’s citation of circuit formulations gets weirder: Ash cites Cooper as an alternative – and by implication, acceptable – formulation of the rule for determining pretext from superior qualifications. Slip Op. at 3-4. But Cooper, like the Ash decision below, is an 11th Circuit case, and itself applied the “virtual slap” test. See Cooper, 390 F.3d 695, 732. Cooper, however, explained on the same page that the “virtual slap” test should be understood in terms of the formulation that the Ash court cites with approval. Compare Cooper, supra at 732, with Slip Op. at 3-4.
Moreover, the 11th circuit Ash decision quoted liberally from Cooper in formulating the standard for qualifications-based pretext, but omitted the clarifying quote. See Ash v. Tyson Foods, Inc., 129 Fed. Appx. 529, 533 (11th Cir. 2005).
It therefore seems that the Ash Court disapproved the “virtual slap” test, but approved another formulation that is, at least in theory, identical. This may explain the Ash Court’s criticism of the “virtual slap” test as unhelpful, rather than stating that it imposed too high a burden on the plaintiffs. (Or it may simply be a case of the right hand not knowing what the left hand is slapping. Did that sound bad?) For the reasons expressed in my earlier comment, however, I do not believe that these formulations are identical (at least in practice), and I think that the best explanation for Ash is the increased burden – due to the more extreme rhetorical position that judges must take against employers in order to deny summary judgment – that the formulation places on plaintiffs is both unwarranted by the statutory language and structure (especially in light of the Court’s employer-friendly ruling on relative qualifications in Burdine) and not worth the value, if any, that the “virtual slap” test added to the analysis.
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