QUESTIONS PRESENTED (1) To establish a prima facie case of discrimination in promotion or hiring, is a plaintiff required to show that the position in question was filled by someone outside his or her protected group? (2) In Patterson v. McLean Credit Union, this Court held that in a case of alleged discrimination in hiring or promotion, a plaintiff “might seek to demonstrate that [the employer's] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position.” Ash v. Tyson Foods, Inc. recognized that the courts of appeals apply “various … standards” regarding when proof of superior qualifications is probative of pretext. The question presented is: Is proof that a plaintiff was better qualified than the person-hired of promoted evidence of pretext only if the differences are so conclusive “that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue,” the avowedly “high evidentiary bar” applied in the Seventh Circuit?
Eric Schnapper and Robin Remley, Petitioner's Reply Brief. Riley v. Elkhart Community Schools, 137 S.Ct. 1328 (No. 16-533), 2017 U.S. S. Ct. Briefs LEXIS 593, 2017 WL 712023 (2017) https://digitalcommons.law.uw.edu/faculty-court-briefs/40