Bowles v. Keating

606 P.2d 458, 100 Idaho 808, 1979 Ida. LEXIS 517

• Court: Idaho Supreme Court
• Decided: September 11, 1979
• Docket: 12524
• Status: Published

Opinions

DONALDSON, Chief Justice.

Plaintiff-appellant, Donna Bowles (Bowles), brought a claim for relief in district court in which she alleged that the defendants-respondents, Marshal T. Keating, Superintendent, and the Moscow Public School District 281 (school district), refused her employment for a vice principal position as a result of sex discrimination in violation of I.C. § 67-5909. Following trial, the trial court found that the school district did not hire Bowles because of “her apparent lack of administrative ability and her failure to relate well to others,” that Bowles was not the most qualified applicant for the job, and that the school district rejected all nine official applicants and instead hired a teacher from the Moscow Junior High School for the vice principal position. From these findings the court concluded that the school district’s hiring process was not unreasonable, that the school district discriminated against all nine applicants but that such discrimination was not based on sex and that there were justifiable reasons for the school district to refuse to hire Bowles. Bowles then brought this appeal. We reverse and remand for a new trial.

The facts of this case are largely uncontested, and it is only the conclusions which flow from the facts which are in controversy. In the spring of 1973, there was an opening for the position of vice principal at Moscow High School. The school district gave notice of that opening to colleges in the Pacific Northwest, California and to the Idaho State Department of Employment. Nine applicants, including Mrs. Bowles, filed applications in response to that announcement.

Bowles’ educational qualifications for the position include a Bachelor’s Degree in Business Education with a minor in English and a Master’s Degree in School Administration. She also held an Idaho State Certificate for Administration. In terms of experience she had spent seven years as a teacher of business subjects, such as shorthand, typing and business law. She also had taught three years in a high school of 150 students in Pierce, Idaho, then in Benton City, Washington, in a school of 500 to 700 students and after that in a high school of approximately 150 students in Deary, Idaho.- For two years in the winters, Bowles had taught adult education classes in shorthand and typing.

The evidence at trial disclosed that there were four administrative positions in Moscow’s secondary school system in existence at the time Bowles filed her application for the vice principal position. At the time of trial no women held those positions. Bowles was the first woman to apply for one of the administrative positions; although, at the time of trial, one other woman had applied for a position. Defendant Keating did not recommend either Bowles or the subsequent applicant for a position.

The evidence also indicated that defendant Keating and a John Swartz, then the principal at Moscow High School, screened the nine applications submitted and interviewed four to six of the nine applicants, including Mrs. Bowles. Those interviews were unstructured in nature. Neither interviewer formulated any standardized written questions for the interviews. Nor did either take any formal notes of the interviews. Defendant Keating testified that he and Swartz utilized no objective tests or standards to evaluate those interviewed. In the main, they evaluated the applicants’ responses subjectively.¹ Upon completion of the interview process, Keating and Swartz decided not to hire any of the nine applicants and instead offered the position to a man who had never filed an official application for the position and did not hold an Idaho Administrator’s Certificate.²

As specifically relating to Bowles and the reasons for her rejection for the position, defendant Keating testified that in his opinion she lacked direct experience in the supervising of other teachers. He also expressed concern that because she had previously worked in smaller schools, she would be unfamiliar with computerized scheduling and grading. He also felt that the fact that Bowles’ training was primarily in the business field might be a handicap in her supervising others in other academic areas. Finally, Keating, based on information from previous employers, believed that Bowles had difficulty in relating to others in the area of human relation skills. Swartz testified that he formulated his impressions of Bowles primarily from the interview. It was his opinion that she was weak in the area of working with discipline problems, as well as in the area of supervision of the instruction of teachers. A former supervisor of Bowles testified that while she thought Bowles was a good teacher and despite the fact that she had seen Bowles operate in a supervisory capacity only occasionally, she did not think Bowles would make a good administrator.

Based on the above evidence the trial court held for the defendant. On appeal, Bowles asserts that the trial court did not adhere to a correct order and allocation of proof at trial; that the evidence does not support the findings and conclusions of the trial court relating to the justifiable reasons for the rejection of her application: specifically, her lack of administrative ability and her inability to relate to others; and that the school district erroneously judged the applicants on the basis of subjective evaluations rather than using objective standards.

We point out initially that this action does not involve an asserted violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e — 2(a)). Neither does this action allege the violation of any of Bowles’ constitutional rights under either the United States or Idaho Constitution. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

Idaho Code § 67 — 5909 provides:

“Acts prohibited. It shall be a prohibited act to discriminate against a person because of, or on a basis of, race, color, religion, sex or national origin, in any of the following:

(1) For an employer to fail or refuse to hire, to discharge, or to otherwise discriminate against an individual with respect to compensation or the terms, conditions or privileges of employment

This provision clearly indicates the legislative intent to prohibit discrimination in employment practices in Idaho on the basis of sex. Idaho Trailer Coach Association v. Brown, 95 Idaho 910, 523 P.2d 42 (1974). In this respect I.C. § 67-5909 is a parallel state statute to Title VII of the Civil Rights Act of 1964. However, this Court has not had occasion to determine the necessary quantum of proof and applicable standards for adjudication of claims of statutorily proscribed discrimination on the basis of sex. Many federal courts, on the other hand, have determined proof requirements and standards for adjudication under Title VII. Further, the state courts which have had occasion to construe their discrimination statutes have done so on the basis of the quantum of proof and standards promulgated in the federal cases dealing with alleged Title VII sex discrimination violations. See Peper v. Princeton University Board of Trustees, 151 N.J.Super. 15, 376 A.2d 535 (1977); General Electric Corp. v. Commonwealth, 469 Pa. 292, 365 A.2d 649 (1976); Ellingson v. Spokane Mortgage Co., 19 Wash.App. 48, 573 P.2d 389 (1978). Four states have expressly adopted the federal quantum of proof and standards in sex discrimination cases. See State Fair Employment Practices v. Hohe, 53 Ill.App.3d 724, 11 Ill.Dec. 158, 368 N.E.2d 709 (1977); Wheelock College v. Massachusetts Commission against Discrimination, 371 Mass. 130, 355 N.E.2d 309 (1976); Danz v. Jones, 263 N.W.2d 395 (Minn.1978); Scarborough v. Arnold, 379 A.2d 790 (N.H.1977).

Federal and state courts dealing with discrimination cases have recognized that “proof of unlawful discrimination rarely can be established by direct evidence and that an employer’s seemingly arbitrary or pretextual explanation for a particular hiring judgment should not be permitted to justify conduct which is in fact unlawfully discriminatory.” Wheelock College v. Massachusetts Commission against Discrimination, supra 355 N.E.2d at 314. Thus, while we acknowledge that the ultimate burden of persuasion on the issue of discrimination remains with the complainant, Board of Trustees of Keene State College v. Sweeney, 569 F.2d 169 (1st Cir. 1978), we accept the principle that a complainant may prove a prima facie unlawful discrimination case without proving an employer’s intent to discriminate, thereby shifting the burden of producing evidence to the employer to give a lawful explanation for its treatment of the complainant. We therefore adhere to and are guided by the quantum of proof and standards promulgated in' discrimination cases arising under Title VII.

Under a Title VII analysis, once a plaintiff has carried the burden of producing evidence as to certain facts, certain presumptions arise in that plaintiff’s favor. Without proving an employer’s intent to discriminate, a discrimination plaintiff may make a claim for relief under either the “disparate treatment” theory of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or the “disparate impact” theory of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See generally B. Schlei & P. Grossman, Employment Discrimination Law 1—12 (1976). Either theory may be applied to a particular set of facts. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In this case Bowles has attempted to utilize both theories.

To establish a prima facie case of illegal discrimination under the “disparate impact” theory, a plaintiff need only prove that an employer’s policies and practices which are neutral on their face and intent, nevertheless discriminate in effect against a particular group. International Brotherhood of Teamsters v. United States, supra; Griggs v. Duke Power Co., supra. Thereafter, an employer must shoulder the burden to show a business necessity for the use of the policies or practices challenged. Griggs v. Duke Power Co., supra.

To establish a prima facie case of discrimination under the “disparate treatment” theory, a plaintiff must show (1) that she belongs to a protected class, (2) that she applied and was qualified for a job for which the employer was seeking applicants, (3) that despite her qualifications, she was rejected, and (4) that following her rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.³ McDonnell Douglas v. Green, supra; Peters v. Jefferson Chemical Co., 516 F.2d 447 (5th Cir. 1975). At this point, the burden shifts to the employer “to articulate some legitimate nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas v. Green, supra 411 U.S. at 802, 93 S.Ct. at 1824.

In attempting to establish her “disparate impact” theory, Bowles relied upon employment statistics drawn from the Moscow School District. Proof of significant statistical disparity may be used to create a prima facie case of discrimination. See, e. g., Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). See generally, B. Schlei & P. Grossman, Employment Discrimination Law 1147 — 96 (1976). Bowles asserts that since no woman has been hired for secondary administrative positions in the Moscow School District, such is a statistical imbalance within the group hired by the employer and is sufficient to create a prima facie case. We disagree. Such conclusion might appropriately be drawn if the statistical base relied on were larger, but here the small number of positions in the district (4), coupled with the small numbers of female applicants (2), precludes the inference that the lack of female administrators is attributable to discrimination, and not chance. See International Brotherhood of Teamsters v. United States, supra; Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974); Robinson v. City of Dallas, 514 F.2d 1271 (5th Cir. 1975). See generally, Note, Employment Discrimination: Statistics and Preferences Under Title VII, 59 Va.L.Rev. 463 (1973). We note a lack of evidence in the record indicating the percentage of qualified secondary administrators who are women. As to assumptions which may be drawn in the absence of such evidence, see International Brotherhood of Teamsters v. United States, supra; Mayor of Philadelphia v. Educational Equality League, supra; Robinson v. City of Dallas, supra; Hester v. Southern Railway Co., 497 F.2d 1374 (5th Cir. 1974). See generally, Note Title VII and Employment Discrimination in “Upper Level” Jobs, 73 Colum.L. Rev. 1614 (1973); Note, Employment Discrimination: Statistics and Preferences Under Title VII, 59 Va.L.Rev. 463 (1973). Here, we hold that Bowles did not make a prima facie case based upon the “disparate impact” theory.

Bowles also asserts that she established a prima facie case of discrimination under the “disparate treatment” theory. McDonnell Douglas v. Green, supra. We agree that Bowles did make out a prima facie case under those standards. This is not dispositive of the case, however. When a plaintiff establishes such a prima facie case, the burden of producing evidence then shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant’s rejection. As the United States Supreme Court recently stated in Furnco Const. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 2949-2950, 57 L.Ed.2d 957 (1978): Hence in the instant case the burden of producing evidence which shifted to the school district was that of proving that the decision not to hire Bowles was based on legitimate nondiscriminatory considerations. It is the nature of the burden which shifts to the defendant in this case and the proof required once the burden does shift which causes us to reverse the decision of the district court and remand this case for a new trial.

“A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.

“When the prima facie case is understood in light of the opinion in McDonnell Douglas, it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race. ... To dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only ‘articulate some legitimate nondiscriminatory reason for the employee’s rejection.’ ”

In the abstract, shifting the burden of producing evidence to the employer may be no burden at all where, as here, the employer utilizes subjective and unstructured standards to make an employment decision. The record before us clearly indicates that the school district based its decision not to hire Bowles on subjective and unstructured standards. Bowles asserts that such standards can be easily manipulated to disguise discrimination. We certainly do not dispute the validity of this assertion. But it is also true that decisions of hiring or promotion in upper level jobs may of necessity involve assessments of such abstractions and intangibles, as leadership, personality, ability to relate to others and supervisory ability, which are difficult, if not impossible, of realistic measurement by objective technique alone. See Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir. 1975), vacated and remanded on another issue, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), opinion on remand, 526 F.2d 722 (1975); Note, Title VII and Employment Discrimination in “Upper Level” Jobs, 73 Colum.L.Rev. 1613 (1973). We note that subjective hiring procedures are not per se violative of Title VII. Rogers v. International Paper Co., supra; Hester v. Southern Railway Co., supra; see generally, B. Schlei & P. Grossman, Employment Discrimination Law 166-81 (1976).

But we are of the opinion that where, as in this case, an employer utilizes subjective and unstructured standards in the hiring process, that employer, in addition to presenting legitimate nondiscriminatory reasons for an employment decision, must produce credible evidence to show that the reasons advanced were in fact the real reasons. See Garrett v. Mobil Oil Corp., 531 F.2d 892, 895-896 (8th Cir. 1976); Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir. 1975); Peters v. Jefferson Chem. Co., supra; Holthaus v. Compton & Sons, Inc., 514 F.2d 651, 653-654 (8th Cir. 1975). If the employer does not produce such credible evidence, he has failed to rebut the plaintiff’s prima facie case. The Massachusetts Supreme Court stated it this way:

“[I]f the reason given by the employer is the real reason for its action and it is a nondiscriminatory one . . . the employer has fulfilled its obligation of stating a reason and producing support for the stated reason, thus rebutting the prima facie case.”

Wheelock College v. Massachusetts Commission against Discrimination, supra, 355 N.E.2d at 315. If the employer does produce such credible evidence, then the burden of producing evidence shifts back to the plaintiff to show that the employer’s reasons for rejecting the plaintiff were in fact pretext. McDonnell Douglas Corp. v. Green, supra.

Our review of the record indicates that while the school district presented their reasons for rejecting Bowles’ application—lack of administrative ability and inability to relate well with others—they failed to present credible evidence to suggest that those reasons were anything more than convenient reasons.⁴

The only evidence in the record with respect to Bowles’ inability to relate well to others is the testimony of defendant Keating. He offered testimony that based on information which he had from other employers, he believed that “she might have difficulty in the area of human relation skills.” While there is other testimony in the record concerning Bowles’ qualifications or lack of qualifications, there is. no other testimony bearing specifically on her ability to relate well to other people.

As it relates to Bowles’ administrative abilities, the record indicates that she had a more significant administrative background than the person who was hired. The trial judge himself so stated at trial. In light of this, the finding of the fact that Bowles was not the most qualified applicant for the job becomes a meaningless finding.

We turn now to a discussion of the trial court’s conclusion of law that since all nine applicants (eight men and one woman) were discriminated against, Bowles could not seek relief based on a claim of sex discrimination. The problem is that this logic effectively forces the plaintiff to show initially, contrary to the holding of McDonnell Douglas and Fumco, that the employer intended to discriminate against her on the basis of sex. The trial judge erroneously considered such a threshold showing to be essential in order for Bowles to make out a claim for relief. At trial he stated:

“[I]t seems to me that there must be something that shows discrimination directed toward your client because she’s a female. And I don’t find that in the record. There’s no question she was discriminated against but it seems to me she was an outsider. And I don’t think you’ve shown anything just because she was a woman.”

The fact of the matter is that because Bowles claims to have been discriminated against on the basis of sex, under I.C. § 67-5909, she has a claim for relief. The school district’s rejection of the other eight applicants, all of whom were male, is irrelevant to her establishing a prima facie discrimination claim; although, it may be relevant to the school district’s attempt to rebut Bowles’ prima facie case.

Where there is a claim of job discrimination by a member of the minority covered by chapter 59 of the Idaho Code, that minority member is not deprived of his or her cause of action even though a person not a part of that minority is also rejected from the same job. Quite to the contrary, I.C. § 67-5909 opens the doors of this state’s courts to a plaintiff who alleges that an employer discriminated against her/him on the basis of race, color, religion, sex or national origin with a minimum showing on his or her part. Under McDonnell Douglas, such a plaintiff need only show that: (1) that person belongs to a protected class, (2) that person applied and was qualified for a job for which the employer was seeking applicants, (3) that despite that person’s qualifications, she/he was rejected, (4) and lastly, that following her/his rejection, the position remained open and the employer continued to seek applicants from persons of her/his qualifications. Once a discrimination plaintiff has made this showing, without any showing of an employer’s intent to discriminate, she/he has satisfied her/his burden of proof. At that point the burden shifts to the defendant-employer to prove by credible evidence that it rejected the plaintiff’s application for legitimate nondiscriminatory reasons. If the employer’s reasons are legitimate nondiscriminatory ones and if they are the real reasons for the employer’s actions, the employer has fulfilled its obligation of stating reasons and producing support for those reasons, thus rebutting a prima facie discrimination case.

The proper focus in this case is on the defendants’ ability to rebut Mrs. Bowles’ prima facie discrimination case, not on Mrs. Bowles’ ability to produce evidence of the school district’s intent to discriminate on the basis of sex. If the defendants successfully rebut her case, the practical effect of such a rebuttal would be that there was no discrimination on the basis of sex as a mattér of law. Conversely, if the defendants fail in their burden, the effect would be to conclude that they discriminated against the plaintiff on the basis of sex in violation of I.C. § 67-5909 as a matter of law.

As is evident from the foregoing discussion of the record and of the law to be applied, this action was tried with a certain amount of confusion, as to the standards to be used to guide the litigation, the burden required of the plaintiff to establish a prima facie case and the burden upon the defendants to rebut that case. Given the confusion at trial and the resulting absence of a record which would indicate whether the trial judge found for the defendants because Bowles could not prove the school district intended to discriminate against her on the basis of sex and whether the school district did in fact rebut Bowles’ prima facie showing, a new trial is in order.

We have taken the time to set out the nature of the proof required and the standards to be utilized in determining the validity of a discrimination claim under I.C. § 67 — 5909 in this case because it represents one of the first significant state job discrimination cases to reach Idaho courts. We have no doubt that many will follow. We have no desire to deal with these future cases in an ad hoc manner. Nor will this Court be complacent with allowing litigants in such cases to build a record for appeal in the same ad hoc manner.

This case is reversed and remanded for a new trial in accordance with this opinion. We award costs pursuant to I.A.R. 40(a).

McFADDEN, J., concurs.

1 . At trial neither interviewer could specifically recall specific questions asked at the interviews. Swartz testified that all he could specifically remember about Bowles’ interview was that she did not go into enough detail in response to his questions — whatever they were.

2 . At trial, the trial judge commented to defendant Keating that it appeared to him that Keating had intended to hire the uncertified individual all along. The trial judge based this observation partially on the fact that Keating had signed a statement after reviewing the nine official applications to the effect that no certified person was available for the position even though Mrs. Bowles was certified. Keating denied any such intention. He then noted this individual’s qualifications which in his, Keating’s mind, better qualified him as an administrator than Mrs. Bowles:

“He had successfully completed training as a jet flight pilot with the United States Air Force and I felt that that experience had given him a good deal of leadership training. A good deal of experience in supervision of others. Good deal of training in administrative responsibilities that would be very similar to a position in school administration. I personally felt that that was a strong plus factor in his background for the position we were considering for.”

3 . While there has been some suggestion that the order, nature, and burden of proof prescribed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, supra, a racial discrimination case under Title VII, is inapplicable to sex discrimination cases, the

4 . Given our conclusion in this regard, we do not reach the question of whether Bowles presented evidence showing that the School District’s reasons for rejecting her were mere pretext.