Revised January 27, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-50481 _____________________

WALTER DEINES,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ January 19, 1999 Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Walter Deines appeals the dismissal of his national origin

discrimination claim brought under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. He challenges specifically

the district court’s jury charge regarding his burden of persuasion

of proving pretext. We reemphasize the general rule that

differences in qualifications between job candidates are generally

not probative evidence of discrimination 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. We

therefore hold that the district court did not err in instructing

the jury that 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.”

I

On November 6, 1992, Walter Deines, a Hispanic, applied to the

Texas Department of Protective and Regulatory Services (“DPRS”),

for the position of Social Services Administrator III (Regional

Director for the DPRS) in the Lubbock-Amarillo, Texas region.

Deines was one of six applicants for the job. Deines advanced to

the second phase of the application process, which included a

personal interview with David Reilly, the DPRS hiring official.

Reilly’s duty was to determine which of the several applicants’

qualifications most closely matched the DPRS’s selection criteria.

After Reilly interviewed Deines on December 4, 1992, Reilly

concluded that Deines’s qualifications exceeded the minimum

qualifications required for the Lubbock position.

Next, on December 15, 1992, Reilly told Deines that the

decision to select a new regional director for the Lubbock-Amarillo

region had been delayed, but reassured him that no one had been

2 hired for the job. Reilly speculated that the position would be

filled during the first week of January 1993.

Reilly ultimately determined that Deines was not the best

applicant for the job. On February 8, 1993, Reilly filled the

Lubbock opening with Mark William Dozier, a former DPRS employee

who was the administrator of the Buckner Baptist Children’s Home in

Lubbock, Texas. When Dozier declined the position on February 11,

1993, Reilly immediately hired Colleen W. McCall on February 12,

1993. Deines, who was never offered the Lubbock position, took the

view that he was more qualified than McCall and that the primary

distinction between them was that McCall was a white, non-Hispanic.

Consequently, on February 26, 1996, Deines sued the DPRS under

Title VII, alleging that the DPRS denied him employment as the

Lubbock-Amarillo Regional Director solely because of his Hispanic

national origin. The case went to trial on March 17, 1997, and the

jury returned a verdict in favor of the DPRS on March 21, 1997.

The jury concluded that Deines’s Hispanic national origin was not

the motivating factor in DPRS’s decision not to hire him. The

district court entered judgment in the case on May 16, 1997.

Deines then lodged this appeal. He argues that the district

court’s jury instruction relating to pretext misstated the law by

placing too heavy a burden on the plaintiff to prove the employer’s

reasons were pretextual.

3 II

The district court has broad discretion in formulating the

jury charge, and we therefore review the instructions with

deference. Gautreaux v. Scurlock Marine, Inc.,

(5th Cir. 1996) (citations omitted), overruled on other grounds by

(1997) (en banc). Accordingly, a challenge to jury

instructions “must demonstrate that the charge as a whole creates

substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations.” Mooney v. Aramco Services,

Co.,

(5th Cir. 1995). However, even erroneous

jury instructions will not require reversal if based upon the

entire record the challenged instruction could not have affected

the outcome of the case.

III

A

Deines’s primary contention on appeal is that the district

court erred in its instruction to the jury regarding his burden of

persuasion in establishing pretext. Deines argues that the

district court essentially elevated his burden of persuasion from

the preponderance of the evidence standard to a level of clear and

convincing evidence when it instructed the jury that:

Also, you as a jury are not here simply to second guess the defendant’s hiring decision as to which candidate was best qualified or best suited for the job. Therefore, disparities in qualifications are not enough in and of

4 themselves to demonstrate discriminatory intent unless those disparities are so apparent as virtually to jump off the page and slap you in the face.

Relying on the sufficiency of the evidence standard as

articulated in Rhodes v. Guiberson Oil Tools,

(5th

Cir. 1996)(en banc), Deines argues that to meet his burden of

persuasion he only had to set forth pretext evidence “of such

quality and weight that reasonable and fair-minded men in the

exercise of impartial judgment might reach different conclusions.”

Therefore, Deines concludes that evidence can be sufficient to

create an inference of discrimination under Rhodes without “having

to jump off the page and slap you in the face.”

The DPRS responds that the district court did not err in

giving the challenged instruction because the charge merely

specifies the quality of evidence sufficient to create an inference

of discrimination when the plaintiff is relying on better

qualifications to prove intentional discrimination. The DPRS

further contends that the jury charge is correct because it

virtually follows the text of Odom v. Frank,

(5th

Cir. 1993).

Deines’s argument that the district court’s jury charge raised

his burden of persuasion challenges clear and firmly established

precedent of this court. In the context of the McDonnell Douglas

burden-shifting analysis--specifically as it pertains to the

5 plaintiff’s burden of establishing pretext by a preponderance of

the evidence--we have time and again specified the point at which

disparities in qualifications will allow a trier of fact to infer

discrimination. Most recently we explained:

We have held that a plaintiff can take his case to a jury with evidence that he was clearly better qualified than [other] employees who were selected for the position at issue. . . . Moreover, in pursuing this inquiry, we recognize that the judicial system is not as well suited by training and experience to evaluate qualifications . . . in other disciplines as are those persons who have trained and worked for years in that field of endeavor for which the applications under consideration are being evaluated. Thus, unless disparities in curricula vitae are so apparent as virtually to jump off the page and slap us in the face, we judges should be reluctant to substitute our views for those of the individuals charged with the evaluation duty by virtue of their own years of experience and expertise in the field in question.

Scott v. University of Mississippi,

(5th Cir.

1998)(emphasis added)(internal citations and quotations omitted).

See also, EEOC v. Louisiana Office of Community Services,

, 1445 (5th Cir. 1995); Odom v. Frank,

(5th

Cir. 1993).

We first note that the aforementioned standard is only one of

many rules of evidentiary proof, developed to “progressively

sharpe[n] the inquiry into the [ever] elusive factual question of

intentional discrimination.” See St. Mary’s Honor Center v. Hicks,

(1993)(citing Texas Dept. of Community Affairs v.

6 Burdine,

, 255 n.8 (1981)). The phrase “jump off the

page and slap [you] in the face” is simply a colloquial expression

that we have utilized to bring some degree of understanding of the

level of disparity in qualifications required to create an

inference of intentional discrimination. In its essence, the

phrase 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. See Scott,

; Odom,

.1

1 In passing, we note that the jury charge provided that “[d]isparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent. . . .” (Emphasis added.) The use of the word “demonstrate” may be misleading. Indeed, the instruction is erroneous to the extent that it suggests that disparities in qualifications in and of themselves can actually demonstrate or establish discriminatory intent as a conclusive fact. The more appropriate wording for the charge is that “disparities in qualifications are not enough in and of themselves to create an inference of discriminatory intent . . .” We therefore encourage district courts to phrase this instruction in these words.

7 B

Deines further argues, however, that the portion of the charge

that instructed the jury that “[y]ou as a jury are not here simply

to second guess the defendant’s hiring decision as to which

candidate was best qualified or best suited for the job” is in

tension with Hicks and Rhodes because it precludes his showing that

DPRS lied when it said that Ms. McCall was better qualified than

he. Deines contends that if the jury cannot second-guess an

employer’s decision on qualifications, then the plaintiff cannot

prove that the employer’s reason for denying him the job, i.e., the

other candidate was better qualified for the job, was mendacious

and hence a pretext for intentional discrimination.

First, this argument misapprehends the extent of the jury’s

discrete inquiry in the context of employment discrimination suits.

In Title VII cases, “we do not try in court the validity of [an

employer’s] good faith belief as to [one] employee’s competence [in

comparison to another.]” Mayberry v. Vought Aircraft Co.,

(5th Cir. 1995) (citations omitted). We have previously

emphasized that “discrimination laws [are not] vehicles for

judicial second-guessing of business decisions.” Walton v. Bisco

Industries, Inc.,

(5th Cir. 1997). See also

Scott,

; Louisiana Office, 47 F.3d at 1448;

Bodenheimer v. PPG Industries, Inc.,

(5th Cir.

8 1993). Therefore, apart from searching for discriminatory intent,

it is not the function of the jury to scrutinize the employer’s

judgment as to who is best qualified to fill the position; nor is

it the jury’s task to weigh the respective qualifications of the

applicants. Whether the employer’s decision was the correct one,

or the fair one, or the best one is not a question within the

jury’s province to decide. The single issue for the trier of fact

is whether the employer’s selection of a particular applicant over

the plaintiff was motivated by discrimination. Hicks,

.

Second, Deines’s argument does not take into account the

instruction as a whole. The instruction fully explained the nature

of the case, that the plaintiff’s burden was to prove his case by

a preponderance of the evidence, that the plaintiff need only prove

that the plaintiff’s national origin was a motivating factor in the

employer’s decision and that

. . . .

. . . PLAINTIFF MAY DO THIS, FOR EXAMPLE, BY PRODUCING SUBSTANTIVE EVIDENCE THAT THE DEFENDANT’S STATED REASONS FOR NOT HIRING HIM WERE FALSE. THE EVIDENCE MAY, FOR EXAMPLE, STRONGLY INDICATE THAT THE DEFENDANT HAS INTRODUCED FABRICATED JUSTIFICATION FOR NOT HIRING PLAINTIFF, AND NOT OTHERWISE SUGGEST A CREDIBLE NONDISCRIMINATORY REASON. ON THE OTHER HAND, THE MERE FACT THAT PLAINTIFF IS A HISPANIC AND WAS NOT HIRED IS NOT SUFFICIENT, IN AND OF ITSELF, TO ESTABLISH PLAINTIFF’S CLAIM UNDER THE LAW. ALSO YOU AS A JURY ARE NOT HERE SIMPLY TO SECOND GUESS THE DEFENDANT’S HIRING DECISION AS TO WHICH CANDIDATE WAS

9 BEST QUALIFIED OR BEST SUITED FOR THE JOB. THEREFORE, 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. . . .

Volume 1, Jury Charge, pp. 6-7.

The fallacy in Deines’s argument is that he fails to

acknowledge that even if he proved to the jury that the employer

did not properly evaluate the qualifications of the respective

candidates, and even if the jury concluded that Deines was the best

qualified candidate, he still would not have proved his case. See

Hicks,

(“that the employer’s proffered reason is

unpersuasive, or even obviously contrived does not necessarily

establish that the plaintiff’s proffered reason of [discrimination]

is correct”). As our precedents have made clear, and as we have

emphasized in this opinion, the employer’s judgment as to

qualifications will not be probative of the issue of a

discriminatory motive unless the qualifications are so widely

disparate that no reasonable employer would have made the same

decision. It is hardly a basis for the jury to find mendacity on

the part of the employer when its judgments on qualifications are

somewhere within the realm of reason. There is then, for the

purposes of proving pretext, a difference in simply “second-

guessing” an employer’s judgment and finding proof of mendacity.

10 Deines’s argument, however, has attempted to blur this very

important distinction and, accordingly, we must reject it.

IV

Because the challenged jury instructions are consistent with

the principles we have noted in the opinion, we conclude that the

district court did not err in instructing the jury. The judgment

in favor of the DPRS is therefore

A F F I R M E D.

11