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Court Overrules Two Juries in Race Discrimination Suit

An epic court battle between Tyson Foods and employee John Hithon endured for 14 years, two jury trials, three circuit court of appeals rulings and a Supreme Court opinion. In August, the 11th Circuit's fourth ruling in the case may have finally put a controversial end to the racial discrimination suit saga.

Hithon accused the company of racial discrimination in promotion decisions. In 1995, a supervisor named Thomas Hatley at the Tyson chicken processing plant in Gadsden, Ala., chose a white employee from another plant for shift manager over Hithon, an African-American who already worked at the Gadsden plant.

Tyson said the plant was performing poorly and management wanted to hire someone from outside. Hithon claimed he was qualified for the job and passed over because he was black. As part of Hithon's case, he claimed Hatley called him "boy" in a racially derogatory manner--a claim that took the case all the way to the Supreme Court, which ordered the Circuit to look more closely at context in which the supervisor used "boy."

On Aug. 17, the 11th Circuit made its fourth Ash v. Tyson ruling. In a dense, 39-page unpublished opinion, a new and divided panel reversed a jury verdict in favor of Hithon for the second time.

"A reasonable jury could not have found that racial discrimination was the real reason" for Tyson's promotion decision, wrote the per curiam majority.

Context Counts

The first Ash v. Tyson jury awarded Hithon and another plaintiff, who has since dropped out of the case, each $250,000 in compensatory damages and $1.5 million in punitive damages. The trial judge vacated the verdict and entered judgment in favor of Tyson, saying there was no evidence of discrimination. On appeal, the 11th Circuit affirmed the trial judge's decision and concluded the word "boy," used without modifiers, was not evidence of discrimination.

The Supreme Court vacated the Circuit opinion. The high court said the implications of "boy" depend on context. On remand, the same Circuit panel effectively made the same decision as before, saying "boy" had been used in a "conversational" and "non-racial" context.

The case was retried again anyway, in light of other circumstantial evidence the Circuit said could be pretextual evidence of discrimination. A second jury came to almost exactly the same conclusion as the first, awarding the plaintiff $300,000 in compensatory damages and $1 million in punitive damages. The same trial judge vacated the punitive award but approved everything else. But the 11th Circuit once again reversed the jury verdict.

Tyson argued it needed to hire someone not tethered to the plant's operational problems. Hatley also denied calling Hithon "boy" at all. Still, the Supreme Court took the Circuit to task for its dismissive treatment of the "boy" evidence, requiring it to look more closely at "inflection, tone of voice, local custom, and historical usage."

But the Circuit held its ground in its August decision.

"[E]ven if somehow construed as racial, we conclude that the comments were ambiguous stray remarks not uttered in the context of the decisions at issue and are not sufficient circumstantial evidence of bias," the majority wrote.

Jury's Job

Following the 2-1 ruling, media reports criticized the notoriously conservative appeals court for insensitivity toward southern racial tensions. From a legal policy standpoint, the 11th Circuit's choice to overrule two different juries is also unnerving, says Cozen O'Connor Member Jeffrey Braff.

"In this situation, you must prove intent, and you rarely get smoking guns. The jury has to rely on circumstantial evidence, credibility--kind of sniffing around," he says. "The 11th Circuit took it away from the jury to make that determination."

It's not unheard of for judges to overrule jury verdicts or push back against the Supreme Court, but the Ash panel's language was particularly harsh, according to Jeffrey Hirsch, an associate professor at University of Tennessee College of Law.

"Saying that no reasonable jury could find discrimination--that's kind of eye popping," says Hirsch, who also writes for the Workplace Prof Blog.

Braff doesn't necessarily have a problem with the 11th Circuit's conclusion that "boy" didn't constitute race discrimination in this case. However, it wasn't the only evidence presented. Two juries also heard other testimony and put the pieces together. It was the juries' perogative to decide they didn't believe Tyson, Braff says.

"The Supreme Court said we live in the real world," says Matthew Sarelson, senior partner at Sarelson Law Firm in Florida. "Using the word 'boy' in a certain manner clearly could be considered racial. Two juries found that it was racial."

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