During 14 years of litigation over his claims that he was denied a job promotion because he is black, John Hithon has twice been awarded jury verdicts of more than $1 million. His case also prompted the U.S. Supreme Court to say that using the word "boy" to describe an African-American man could by itself be evidence of race discrimination.
But Hithon and his lawyer have not convinced the federal appeals court in Atlanta of his legal arguments. On Tuesday a panel of the 11th U.S. Circuit Court of Appeals reaffirmed a prior 11th Circuit ruling that said evidence of the use of the term "boy" in this case -- allegedly by a white Tyson Foods poultry plant manager to address Hithon and another plaintiff -- wasn't enough to support a jury finding that Hithon suffered racial discrimination.
Hithon's lawyer, Alicia K. Haynes of Birmingham, Ala., said 11th Circuit Judges Edward E. Carnes and William H. Pryor Jr., who ruled over the dissent of a visiting senior judge, missed something in their review of the paper record of the case.
"The concern is that any time you present that type of evidence, it is the jury who is listening to how those words are being said," Haynes said. "They're listening to the tone that was used in saying those words. They're listening to the inflection. They are able to judge who the speaker was and what effect those words had on the person that it was being said to, and the appellate court is missing all of that. They are reading a cold, written record."
Haynes said her side is looking at its options. But the 11th Circuit rarely grants a rehearing, and another opportunity at the Supreme Court is even less likely, so Tuesday's decision may mark the end of the case.
Hithon in 1982 began working at a Gadsden, Ala., chicken plant ultimately owned by Tyson. According to Tuesday's panel opinion, he worked his way up within the plant to a superintendent position before he applied for a shift manager job in 1995.
The manager of the plant, Tom Hatley, who is white, had withheld wage increases from the two shift managers, who also are white, causing both of them to quit. Passing over Hithon and another black man, Anthony Ash, Hatley brought in two white men from other Tyson plants to fill the jobs.
At the most recent trial in the case, Hithon testified that at some point before the promotion decisions at issue were made he heard Hatley say, "hey, boy," as Hithon was leaving a conference room.
Ash testified that Hatley once walked up to him in the cafeteria and said, "boy, you better get going," in a "mean and derogatory way."
According to the plaintiffs lawyer, Hatley denied using the word "boy" to address the plaintiffs.
Hithon, along with some other plaintiffs, filed a lawsuit alleging race discrimination. Along with Ash, Hithon went to a jury trial before U.S. Magistrate Judge Robert R. Armstrong Jr. in Gadsden in 2002. The jury sided with the plaintiffs, awarding Hithon and Ash each $250,000 in compensatory damages and $1.5 million in punitives.
But the magistrate overruled the jury's verdict, saying there wasn't enough evidence from which a jury reasonably could find that Hithon and Ash lost the promotions because they were black. The judge cited testimony by Hatley, who said he thought it would be better to have shift managers who were not associated with the Gadsden facility because it had been performing poorly.
Hithon and Ash appealed to the 11th Circuit, where a panel of Judges Carnes, Joel F. Dubina and Stanley Marcus heard their case. In an unsigned, unpublished opinion issued in 2005, the panel said, "[w]hile the use of 'boy' when modified by a racial classification like 'black' or 'white' is evidence of discriminatory intent ... the use of 'boy' alone is not evidence of discrimination."
The panel upheld the ruling against Ash but said -- regardless of the "boy" issue -- Hithon's case could be retried. The panel noted evidence that Hatley did not interview Hithon until after he selected one of the other white men for the job, saying that could mean Hatley's stated reasons for not hiring Hithon could be a pretext for race discrimination. But the panel upheld the trial judge's ruling that Tyson should get a new trial on Hithon's claims because the damages award was excessive.
THE HIGH COURT
Ash and Hithon asked the U.S. Supreme Court to look at the case. In an unsigned ruling, the high court said the 11th Circuit may have gotten the right result but summarily vacated the opinion anyway.
One problem, the court said, was the panel's conclusion that the word "boy," standing alone, could never be evidence of racial bias. "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign," said the high court's ruling. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage."
On remand, the same 11th Circuit panel took to heart the Supreme Court's comment that the end result of the 2005 ruling may have been correct. The panel reinstated the previous holdings, saying the usages of the word "boy" were "conversational," "non-racial in context" and "remote in time to the employment decision."
But the ruling also meant that Hithon's claims went before a new jury. Tyson argued that evidence about Hatley's use of the word "boy" should be excluded from the new trial in light of the 11th Circuit's revamped explanation on the subject. The trial judge, Armstrong, initially seemed to agree, then reconsidered after Hithon's counsel explained that she intended to present witness testimony on the "tone, inflection and context" in the use of the word.
The second jury found for Hithon, awarding him $35,000 in back pay, $300,000 in compensatory damages for his mental anguish, and $1 million in punitives. On Tyson's motion, Armstrong vacated the punitive damages award but let stand the rest of the verdict.
Both sides appealed to the 11th Circuit, where a new panel of Carnes, Pryor and U.S. District Senior Judge David D. Dowd Jr. of the Northern District of Ohio got the case. By a vote of 2-1, the panel on Tuesday directed Armstrong to enter a judgement for Tyson.
Again in an unsigned, unpublished opinion, the panel majority said that the evidence didn't support Hithon's argument that, because the plant wasn't really performing poorly, Hatley's explanation that he wanted to bring in outside managers must be pretext for discrimination.
Carnes and Pryor added that, contrary to the 11th Circuit's earlier finding that Hithon demonstrated Hatley interviewed him after Hatley already had selected someone else for the promotion, the evidence at the retrial demonstrated that wasn't the case.
As for the use of the word "boy," the panel majority said it could not revisit its earlier ruling that the alleged comments were merely stray remarks, because no "new and substantially different" evidence on that point emerged at the new trial.
"The only additional evidence presented at the retrial was Ash's and Hithon's testimony about how and why the use of the term 'boy' is offensive to them," said the majority opinion, "but the issue is not what was in their mind when they heard the term but what was in Hatley's mind when he used it, and there was no new evidence about that."
The court noted that in testifying about Hatley's alleged use of the word "boy," Ash said Hatley's comment had racial meaning "because you might as well use the 'N' word if you are going to say that."
When Haynes, Hithon's lawyer, responded by posing a follow-up question that used the full "N" word, Armstrong sustained an objection by Tyson. The 11th Circuit opinion chastised Haynes for asking a "highly improper" question.
"[C]ounsel for Hithon interjected the emotionally charged 'N' word into the trial, a word that there was no evidence at all that Hatley or anyone else at the plant ever used," said the panel in a footnote. "This misconduct by Hithon's counsel may explain why the jury returned a verdict in his favor, even though there was insufficient evidence to support it. We need not speculate about that, though, because the judgment is due to be reversed for evidentiary sufficiency anyway."
In his brief dissent, Dowd said he thought the punitive damages award was excessive but otherwise would affirm the verdict. "Two juries have found in favor of the plaintiff Hithon and granted both compensatory and punitive damages," wrote Dowd.
Asked about the panel majority's characterization of one of her questions as "misconduct," Haynes said she was simply trying to make the record clear as to what Ash meant by "the 'N' word."
"I did not understand there was a list of words anywhere that we're not supposed to say in federal court," said Haynes, "and I still contend that, based on what the Supreme Court has allowed, in trying to show the historical context of certain words, you're going to have to use those words."
She said her side was encouraged by the dissenting opinion. "There is just a real concern when an appeals court takes away two consistent jury verdicts in the same case," she said. "For the court to say no question of fact exists for the jury is troubling."
A spokesman for Tyson Foods, Gary Mickelson, said in an e-mail that the company was pleased with the reversal of the jury verdict. "It's the policy of our company to provide a work environment free of unlawful discrimination," he wrote, "and it's also part of our core values to operate with integrity and be respectful of others."
The winning appellate argument for Tyson was made by Peyton Lacy Jr. of Ogletree Deakins Nash Smoak & Stewart's Birmingham office.
The case is Ash v. Tyson, No. 08-16135.