Boy

I was about to write up this (unpublished?!) opinion by the 11th, but SFL beat me to it, as did the DBR:

During 14 years of litigation over his claims that he was denied a promotion because he is black, John Hithon has twice been awarded jury verdicts of more than $1 million. His case prompted the U.S. Supreme Court to say 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 persuaded the federal appeals court in Atlanta. On its fourth stop in the 11th U.S. Circuit Court of Appeals, the case generated a 2-1 unsigned opinion sending the case back to trial court for judgment in favor of Tyson Foods. The split panel reaffirmed an 11th Circuit ruling concluding evidence of the use of the term “boy” — allegedly by a white poultry plant manager to address Hithon and another plaintiff — wasn’t enough to support a jury finding of racial discrimination. Hithon’s lawyer, Alicia K. Haynes of Birmingham, Alabama, said Circuit Judges Edward E. Carnes and William H. Pryor Jr., who ruled Aug. 17 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.”