                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            AUGUST 2, 2006
                              No. 04-11695
                                                          THOMAS K. KAHN
                                                               CLERK

                 D. C. Docket No. 96-03257-CV-RRA-M

ANTHONY ASH,
JOHN HITHON,

                                               Plaintiffs-Appellants,

                                 versus

TYSON FOODS, INC.,
a corporation,
                                               Defendant-Appellee.



               Appeal from the United States District Court
                  for the Northern District of Alabama


                            (August 2, 2006)

                    ON REMAND FROM THE
                UNITED STATES SUPREME COURT


Before DUBINA, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
                                          I.

      Appellants Anthony Ash (“Ash”) and John Hithon (“Hithon”), black males,

(collectively “the plaintiffs”) appeal the district court’s orders (1) granting Tyson

Foods, Inc.’s (“Tyson”) renewed motion for judgment as a matter of law, pursuant

to Fed. R. Civ. P. 50(b), on their 42 U.S.C. § 2000e et seq. (“Title VII”) and

42 U.S.C. § 1981 discrimination claims, and (2) alternatively granting Tyson’s

motion for a new trial, pursuant to Fed. R. Civ. P. 50(c), on the basis that the jury’s

punitive and compensatory damages were excessive and unsupported by the

evidence.

      In an unpublished decision, we affirmed the district court’s alternative grant

of a new trial on Hithon’s claims because there was insufficient evidence to

support the punitive damages award and the compensatory damages award was

excessive, but upheld the court’s dismissal of Ash’s claims on grounds that he did

not prove discrimination. See Ash v. Tyson Foods, Inc., 129 Fed. Appx. 529 (11th

Cir. 2005), vacated, 126 S. Ct. 1195 (2006). Hithon’s evidence demonstrated that

Supervisor Hatley may not have interviewed Hithon until after he selected Randy

King (“King”), a white shift manager at an Arkansas plant, for the position in

question. We held this evidence to be sufficient to permit a jury to decide whether

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Hithon’s articulated reasons for not selecting him were a pretext for race

discrimination.

      On petition for writ of certiorari, the Supreme Court of the United States

granted the writ, vacated our judgment, and remanded the case for further

consideration. Specifically, the Supreme Court found fault with our partial

reliance on an articulation of the comparative qualifications standard as one where

pretext is shown only when the disparity in qualifications is so apparent as to

virtually “jump off the page and slap you in the face.” It also instructed that this

court erred by concluding that the use of “boy” alone is not evidence of racial

discrimination unless accompanied by racial qualifiers when evaluating whether

such references to plaintiffs were evidence of racial bias. Ash v. Tyson Foods,

Inc., 126 S. Ct. 1195 (2006).

      The Supreme Court remanded the case to us with instructions to determine

whether these two findings were essential to our holding and to determine if the

standards written more appropriately would change the ultimate finding. The

Supreme Court specifically cautioned that its decision should not be read to hold

that petitioners’ evidence necessarily showed pretext.

                                         II.




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      We review a district court’s grant of a Fed. R. Civ. P. 50(b) renewed motion

for judgment as a matter of law de novo and apply the same standard as the district

court. See Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000). In reviewing

the evidence, we draw all factual inferences and resolve all credibility

determinations in favor of the non-moving parties, who in this case are Ash and

Hithon. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344 (11th Cir. 2000).

However, “the non-movant must put forth more than a mere scintilla of evidence

suggesting that reasonable minds could reach differing verdicts,” and must show

“[a] substantial conflict in the evidence . . . before a matter will be sent to the

jury.” Abel, 210 F.3d at 1337. “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000) (citation omitted). “[A] motion

for judgment as a matter of law will be denied only if reasonable and fair-minded

persons in the exercise of impartial judgment might reach different conclusions.”

Abel, 210 F.3d at 1337 (citation and internal quotations omitted).

      We review a district court’s grant of a new trial for an abuse of discretion.

F.D.I.C. v. Stahl, 89 F.3d 1510, 1514 (11th Cir. 1996). The district court should

grant a motion for a new trial when

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      the verdict is against the clear weight of the evidence or will result in
      a miscarriage of justice, even though there may be substantial
      evidence which would prevent the direction of a verdict . . . .
      Because it is critical that a judge does not merely substitute his
      judgment for that of the jury, new trials should not be granted on
      evidentiary grounds unless, at a minimum, the verdict is against the
      great – not merely the greater – weight of the evidence.

Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th

Cir. 2001) (internal citations and quotation omitted).

                                         III.

      The Supreme Court held that the word “boy” used without modification was

“not always benign” and could be evidence of racially discriminatory intent. The

Court listed five non-exclusive factors which may indicate whether the word is

evidence of racial animus – “context, inflection, tone of voice, local custom and

historical usage.” Ash, 126 S. Ct. at 1197.

      After reviewing the record, we conclude once again that the use of “boy” by

Hatley was not sufficient, either alone or with the other evidence, to provide a

basis for a jury reasonably to find that Tyson’s stated reasons for not promoting

the plaintiffs was racial discrimination. The usages were conversational and as

found by the district court were non-racial in context. But even 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

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circumstantial evidence of bias to provide a reasonable basis for a finding of racial

discrimination in the denial of the promotions. The lack of a modifier in the

context of the use of the word “boy” in this case was not essential to the finding

that it was not used racially, or in such a context as to evidence racial bias, in the

decisions at issue, even if “boy” is considered to have general racial implications.

The statements were remote in time to the employment decision, totally unrelated

to the promotions at issue, and showed no indication of general racial bias in the

decision making process at the plant or by Hatley. Moreover, there is nothing in

the record about the remaining factors to support an inference of racial animus in

the use of the term “boy.”

      There was insufficient evidence of bias in the circumstances of this case to

overcome the articulated reasons for Hatley’s decision, which was that the selected

applicants were not associated with the prior poor performance of the plant, they

had demonstrated leadership and management skills, they had superior

recommendations, and they had experience in the poultry industry at more than

one Tyson plant. The only negative – King’s lack of a college degree – made him

equally, but not less, qualified educationally than the plaintiffs. Thus, we

conclude that the “boy” comments, with the other evidence presented, do not




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provide a reasonable basis for a finding of racial discrimination in the context of

the employment decisions at issue here.

                                           IV.

       In its opinion vacating our judgment, the Supreme Court instructed that the

visual image of words “jumping off the page to slap you in the face” was

unhelpful and imprecise as an elaboration of the standard for inferring pretext

from superior qualifications. The Court concluded that “some formulation other

than the test . . . articulated . . . by those words would better insure that the trial

courts reach consistent results,” citing by way of contrast the articulated standard

used in Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004), cert. denied,

___ U.S. ___, 126 S. Ct. 478 (2005), to-wit: “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.” Ash, 126 S. Ct. at 1197.

       The “jump off the page test” was not essential to this court’s initial

conclusion that the comparative qualifications evidence did not provide sufficient

evidence of pretext. Since Ash, we have utilized the Cooper standard to evaluate

the level of disparity necessary to constitute proof of pretext claimed on the basis

of comparative qualifications. See, e.g., Brooks v. County Commission of

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Jefferson County, Al, 446 F.3d 1160 (11th Cir. 2006); Watkins v. City of

Huntsville, (No. 04-15607) (11th Cir. Apr. 18, 2006); Roper v. City of Foley

Police Dept., (No. 05-15199) (11th Cir. Apr. 18, 2006); Price v. M&H Valve Co.,

(No. 05-15205) (11th Cir. Apr. 7, 2006). In these cases, comparative

qualifications and other alleged indicia of discrimination (i.e., subjective criteria

used by the decision-maker, plaintiff’s belief that his (or her) qualifications were

superior), were held insufficient for a factfinder reasonably to find that the

decision was not based on the qualifications of the applicants.

       On this record, we conclude that the plaintiffs did not meet their burden

under Cooper to show that the disparities between their qualifications and the

qualifications of King and Dade were “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.” Cooper, 390 F.2d at

732.

                                          V.

       After applying the above standards, we reinstate the previous holdings of

our decision. We affirm the district court’s grant of judgment as a matter of law in

favor of Tyson on Ash’s discrimination claims. We reverse the district court’s

grant of judgment as a matter of law in favor of Tyson on Hithon’s discrimination

                                           8
claims but, with respect to Hithon, we affirm the district court’s order alternatively

granting a new trial because there was insufficient evidence to support the jury’s

punitive damages award, and the compensatory damages award was excessive.

We remand this case to the district court to conduct further proceedings consistent

with this opinion.

      AFFIRMED in part, REVERSED and REMANDED in part.




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