If not the face-slap standard, then what?

There are two applicants for a job. One is 68; the other is substantially younger. The younger employee gets the job, and the older employee sues for age discrimination. He argues that his qualifications are better than the person who got the job and thus a jury can conclude that age played a role in the hiring decision. How does a court go about determining the validity of that argument? This scenario is taken from the 5th U.S. Circuit Court of Appeals’ July 2 decision in Moss v. BMC Software Inc., affirming summary judgment for an employer. The court first said what was not the standard: namely that a plaintiff, to establish pretext through comparing qualifications, must show that “ ‘the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.’ ” Why? The U.S. Supreme Court rejected this standard in a per curiam opinion back in 2006. But, I think the high court's opinion, as a per curiam, was not widely read and the face-slap standard is still hanging around. So what is the standard? According to the 5th Circuit, it’s something less onerous and colorful. The 5th Circuit, citing to its earlier case law, wrote: “ ‘[U]nless the qualifications are so widely disparate that no reasonable employer would have made the same decision,’ id., any ‘differences in qualifications are generally not probative evidence of discrimination. . . .’ ” I will buy a beer for anyone who can explain the difference between this and the slap-in-the-face standard. Two other gems from the opinion: First, the court rejected the plaintiff's argument that his years of experience established that he was clearly better qualified. Not so. What matters, according to the court, is which applicant's background was a better fit for what the employer was looking for in the job. Second, the court rejected as evidence of discrimination a comment by the decision-maker that she was searching for a lawyer at a more "junior level" than herself. The court said that her explanation for what she meant dispelled any suggestion of age animus. So, keep in mind that the context of a comment matters, and it matters a lot. Courts do not need to take a comment at face value in determining summary judgment.