Although the Seventh Circuit has used the same now-verboten language employed by the Eleventh Circuit in the case at bar, it does not appear that the decision actually changes the substantive law in the Seventh Circuit.
In Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), cert denied, 537 U.S. 884 (2002), the court set forth the standard for this circuit in two ways: Where an employers proffered non-discriminatory reason for its employment decision is that it selected the most qualified candidate, evidence of the applicants competing qualifications does not constitute evidence of pretext unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue. Millbrook, at 1180, quoting Deines v. Texas Dept. of Protective and Regulatory Services, 164 F.3d 277, 279 (5th Cir.1999); and disparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as to virtually jump off the page and slap you in the face. Millbrook, at 1179 (also quoting Deines).
The first standard, set forth on page 1180 in Millbrook, remains valid, notwithstanding the Supreme Courts rejection of the second standard, for two reasons.
First, in both Deines and Millbrook, the courts of appeal emphasized that the only evidence presented by the plaintiffs was their purportedly superior qualifications.
In the case at bar, on the other hand, there was other evidence of discrimination. The Eleventh Circuits decision, in fact, lists eight separate pieces of evidence of discrimination, other than the relative qualifications of the plaintiffs and the persons hired in their stead. Ash v. Tyson Foods, Inc., 129 Fed.Appx. 529, 531 (11th Cir. 2005).
Unfortunately, the Supreme Courts relation of the facts is so cursory, this is not even apparent from the decision. Nevertheless, reference to the Eleventh Circuits opinion provides a basis for distinguishing the case.
Effectively, the Seventh Circuit has already done so on that basis. In David v. Caterpillar, Inc., 324 F.3d 851, 861-863 (7th Cir. 2003), the court expressly limited its decision in Millbrook to cases where: (1) relative qualifications are the only evidence the plaintiff offered; and (2) the only reason offered by the employer for its decision is the relative qualifications of the applicants.
The court wrote, Nothing in Millbrook forecloses a comparison of qualifications in a case, such as this, where the employer offers conflicting explanations for its employment decision. Id., at 862.
Later, it stated, Furthermore, in Millbrook, we addressed the relatively narrow issue of the circumstances under which evidence of comparative qualifications, standing alone, is sufficient to support a jury verdict of discrimination (emphasis in original). Id., at 863.
Second, the Supreme Court at least tacitly approved the standard stated on page 1180 of the Millbrook case.
The court made reference to this language that was also used by the Eleventh Circuit in the case at bar, and in previous cases, without taking exception to it: 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. Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004).
This is almost identical to the language used in Millbrook on page 1180 and in Deines.
Accordingly, the law in the Seventh Circuit need not be considered substantively changed by the Supreme Courts decision; courts need only stick to the no reasonable persons language, and refrain from using language to the effect that the relative qualifications must be so disparate that they jump off the page and slap you in the face.
– David Ziemer
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David Ziemer can be reached by email.