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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., 84 F.3d 776, 779
(5th Cir. 1996) (citations omitted), overruled on other grounds by
107 F.3d 331 (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., 54 F.3d 1207, 1216 (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. Id.
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, 75 F.3d 989, 993 (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, 3 F.3d 839, 847 (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, 148 F.3d 493, 508 (5th Cir.
1998)(emphasis added)(internal citations and quotations omitted).
See also, EEOC v. Louisiana Office of Community Services, 47 F.3d
1438, 1445 (5th Cir. 1995); Odom v. Frank, 3 F.3d 839, 847 (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,
509 U.S. 502, 506 (1993)(citing Texas Dept. of Community Affairs v.
6

Burdine, 450 U.S. 248, 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,
148 F.3d at 508; Odom, 3 F.3d at 846-47.1
1In 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., 55 F.3d
1086, 1091 (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., 119 F.3d 368, 372 (5th Cir. 1997). See also
Scott, 148 F.3d at 509; Louisiana Office, 47 F.3d at 1448;
Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 959 (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, 509 U.S. at
511.
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, 509 U.S. at 524 ("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