                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                       ________________________             AUG 28, 2006
                                                          THOMAS K. KAHN
                                                              CLERK
                             No. 04-14749
                       ________________________

                  D. C. Docket No. CV-02-PT-01828-M

EVER HIGGINS,

                                                           Plaintiff-Appellant,

                                  versus

TYSON FOODS, INC.,

                                                          Defendant-Appellee.

                       ________________________

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

                             (August 28, 2006)

                     ON REMAND FROM THE
                 UNITED STATES SUPREME COURT

Before BIRCH, BARKETT and FAY, Circuit Judges.

PER CURIAM:
        Ever Higgins brought this action based upon the failure of her supervisors at

Tyson Foods to promote her to the position of Oxford Complex HR Manager. The

district court granted summary judgment to the defendant and entered a lengthy and

detailed Memorandum Opinion. We affirmed based upon that order of September 2,

2004.

        At the time of considering the defendant’s motion for summary judgment, the

case had been reduced somewhat. As set forth by the district court, the following

claims had been conceded by the plaintiff: (1) Intentional infliction of emotional

distress; (2) Negligent hiring; (3) Conversion; (4) Wilful misrepresentations; (5)

Fraud in the inducement; (6) Breach of contract; and (7) Breach of implied covenant

of good faith and fair dealing. What remained to be considered were race and age

discrimination claims related to the Oxford Complex HR Manager position, plus

disparate impact claims. In analyzing these claims and the legal requirements

imposed upon the plaintiff the district court applied our existing precedent that

required evidence that the disparity in qualifications is “so apparent as virtually to

jump off the page and slap you in the face” citing Cofield v. Goldkist, Inc., 267 F.3d

1264, 1268 (11th Cir. 2001). For the discrepancies to “jump off the page and slap you

in the face” the district court determined that they must be of such weight and

significance that no reasonable person could have chosen the other candidate over the

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plaintiff. This was based upon Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir.

2000). The district court concluded that this case is “the mirror image of Lee and

Cofield.”

      On February 27, 2006, the Supreme Court entered the following order:

      The petition for a writ of certiorari is granted. The judgment is vacated
      and the case is remanded to the United States Court of Appeals for the
      Eleventh Circuit, for further consideration in light of Ash v. Tyson
      Foods, Inc., 546 U.S. ____(2006).

      In Ash the Supreme Court held that our test, as set forth in Cofield, is

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

superior qualifications. While not articulating the standard to be used, the Court

made reference to a series of opinions expressing the test differently. These include

Cooper v. SouthernCo., 390 F.3d 695 (CA11 2004) (noting that “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”); Raad v. Fairbanks North Star Borough School

Dist., 323 F.3d 1185, 1194 (CA92003) (holding that qualifications evidence standing

alone may establish pretext where the plaintiff’s qualifications are “clearly superior”

to those of the selected applicant); and Aka v. Washington Hospital Center, 332 U.S.

App. D.C. 256, 156 F.3d 1284, 1294 (CADA 1998) (en banc) (concluding the



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factfinder may infer pretext if a “reasonable employer would have found the plaintiff

to be significantly better qualified for the job”).

      Since Ash our Court has used the Cooper test. See, e.g., Brooks v. County

Commission of 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). This has been most recently discussed in Ash v.

Tyson Foods, Inc., (No. 04-11695) (Aug. 2, 2006) which is our Court’s opinion

following the remand from the Supreme Court . In sum, the test is whether the

disparities in qualifications are 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.

      After a careful review of the record in this matter, we are convinced that the

district court applied the correct test as outlined above. The district court equated the

language of “jump off the page and slap you in the face” with requiring the plaintiff

to establish that any disparity between her qualifications and the qualifications of

Carter and Burdick were so great that no reasonable person would have selected

either Carter or Burdick over her. After a painstaking analysis of the entire




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procedural history, including that of a special review panel, the district court

concluded that the plaintiff has simply failed to meet that test. We agree.

         A good summary of this history is reflected in a portion of the district court’s

order:

         Based on all of the information he had collected at the time of his
         decision, Pittard determined that Carter, an African-American, was the
         most qualified for the position in Oxford. Pittard based his decision on
         the facts that: Carter had a college degree; was bilingual; had great
         successes in her current plant; had high references; was willing to
         relocate; exhibited a high degree of enthusiasm and motivation for the
         job; and interviewed extremely well. During her interview Carter gave
         specific answers to Pittard’s questions and gave descriptions of
         programs that she initiated in her then current role as Plant HR Manager.
         Pittard also felt that Carter was innovative because she developed
         solutions to thorough problems.

         When Carter turned down the position, Pittard determined that the next
         qualified candidate was Burdick because she: was successful in her job;
         had a good track record; had a high degree of enthusiasm about the job;
         had a college degree; was heavily involved in the community and
         willing to do more; and was given high marks by all her references.

         An independent review panel at Tyson revisited the promotion decision
         and also determined that Burdick was more qualified than plaintiff for
         the position. Higgins, Hithon and Burdick all interviewed with the
         panel, and were asked questions designed by the consulting firm to elicit
         the candidates’ assessments of their own competence in the areas of
         intellectual, personal, interpersonal, management, leadership, and
         motivational. Each interview lasted approximately three and a half
         hours and each candidate was asked the same questions. Each panelist
         was also given a copy of the candidates’ resumes to review before their
         interviews.



                                             5
       Before the interviews began, the panel was informed that it was to make
       the best selection for the position and that whomever the panel selected
       would be placed in the position. The panel was told that their job was
       to “second-interview these individuals as if this position had never been
       filled.” At the end of each candidate’s interview, the panel reviewed
       their opinions of the candidate’s strengths and weaknesses. After the
       interviews, each panelist ranked the candidates in the following manner:
       Mantooth             Roles               Eggman              Parks
       1. Burdick           1. Burdick          1. Burdick          1. Higgins
       2. Higgins           2. Higgins          2. Higgins          2. Burdick
       3. Hithon            3. Hithon           3. Hithon           3. Hithon

       Three of the four panelists determined that Burdick was the most
       qualified candidate for the position. The fourth panelist, Parks,
       determined that Higgins and Burdick were equally qualified, but that
       Higgins should receive the promotion because of her seniority. The
       panel ultimately recommended that Burdick was “the candidate who best
       fits the Oxford Complex HRM position.”

       Burdick has been employed by Tyson in a personnel function since June
       1992. (footnotes omitted).

Higgins v. Tyson Foods, Inc., mem. op. At 71, 72 (N.D. AL. Sept. 2, 2004).

       After considering all of the evidence presented, the district court concluded:

              Plaintiff’s argument is in essence that, since she had seniority, she
       was entitled to the job. That is not the measure. There is no direct
       evidence of discrimination as to age or race. Assuming without
       deciding, that plaintiff has proved a prima facie case, defendant has
       articulated that it determined Burdick to be better qualified after a
       considered evaluation which applied reasonable criteria similar to that
       in Lee. 226 F.3d at 1252. The initial evaluation was confirmed by an
       independent review. Plaintiff has not presented sufficient evidence to
       establish pretext. (footnote omitted).

Id. at 83, 84.

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       In deciding what the appropriate test should be, we note the following

observation by the district court:

              Other circuits have more clearly articulated the evidentiary burden
       a plaintiff must meet in order to prove pretext by showing she was
       substantially more qualified than the person promoted. See Fulton
       County, 207 F.3d at 1340. In Deines, for example, the Fifth Circuit
       affirmed the district court’s instruction to the jury stating that
       “disparities in qualifications are not enough in and of themselves to
       demonstrate discriminatory intent unless those disparities are so
       apparent as virtually to jump off the page and slap you in the face.” 164
       F.3d at 280. The court explained that the phrase “jump off the page and
       slap [you] in the face” ...should be understood to mean that 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.
       This evidentiary standard does not alter the plaintiff’s evidentiary
       burden to prove the fact of intentional discrimination by a
       preponderance of the evidence. Instead, the standard only describes the
       character of this particular type of evidence that will be probative of that
       ultimate fact. Id. At 280-81. (footnote omitted).

Id. at 85, 86.

       The sole issue before us at this point is the legal test the district court used in

granting summary judgment in favor of Tyson Foods. We are satisfied that the court

used the correct test as set forth in Cooper. Although reference was made to the

language found to be “unhelpful and imprecise” by the Supreme Court, the district

court clearly equated this to mean that the “disparities in qualifications must be of

such weight and significance that no reasonable person, in the exercise of impartial



                                            7
judgment, could have chosen the candidate selected over the plaintiff for the job in

question.” Consequently, we again affirm the ruling of the district court.

      AFFIRMED.




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