Strand v. Petersburg Public Schools

659 P.2d 1218, 1983 Alas. LEXIS 380, 31 Empl. Prac. Dec. (CCH) 33,457

• Court: Alaska Supreme Court
• Decided: February 18, 1983
• Docket: 5535, 5824
• Status: Published

Opinions

OPINION

MATTHEWS, Justice.

On June 20,1977 Claire Strand, a teacher for twenty-five years with the Petersburg Public Schools, filed a complaint with the Alaska State Commission for Human Rights alleging that she had been denied a position as an elementary school principal because of her sex. After a hearing and extensive briefing the Commission determined that a case of discrimination in violation of AS 18.80.220(a)(1) had been established.¹ The Commission awarded Strand the difference between her salary and that of the elementary school principal, and ordered that Strand be hired to the next available administrative position for which she qualified. Petersburg Public Schools appealed to the superior court, and the superior court issued a memorandum of decision and order remanding the matter to the Commission with directions to enter an order dismissing the complaint. Strand and the Commission have appealed to this court.

The circumstances giving rise to Strand’s complaint were as follows. On April 12, 1977 the principal of Petersburg Elementary School announced that he would resign his post at the end of the school year. Several applications for the position were received, but due to an informal policy of promoting Petersburg teachers to fill administrative positions, the applications of Strand and Mel Stockton, a high school guidance counselor, were more strongly considered. The parties agree that both Strand and Stockton were qualified for the job, although their backgrounds and experience differed.² The Petersburg School Board, which was responsible for hiring administrative personnel, ultimately selected Stockton to fill the principal’s post.

The question presented for review is whether the Commission correctly found that the Board’s selection of Stockton in preference to Strand constituted illegal sex discrimination.³ The standard of review is whether the Commission’s findings are supported by substantial evidence. Alaska USA Federal Credit Union v. Fridriksson, 642 P.2d 804, 808 (Alaska 1982); Alaska State Commission for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980). We conclude that the Commission’s finding that Strand was the victim of discrimination is supported by substantial evidence, including (1) the evidence suggesting that the Board did not compare the personal qualities on which it relied in hiring the successful applicant, Stockton, with the same qualities of Strand, and (2) the evidence that there had been nine persons hired by the Petersburg Public Schools in the past twenty-five years to fill administrative positions, all of them men.

Each of the foregoing bears discussion.

FAILURE TO COMPARE THE QUALITIES OF THE APPLICANTS

It is undisputed that there were only two formal requirements for the principal’s job: a master’s degree and a state-issued principal’s certificate.⁴ The Board had no other guidelines or criteria to aid it in determining which of the two candidates should be selected for the job, and the four Board members expressed different reasons for selecting Stockton rather than Strand. Board members emphasized such attributes as “personality,” “tact,” “ability to deal with people,” “character,” and Stockton’s rapport with teachers and parents and his leadership ability when explaining why they believed that Stockton was better suited for the principal’s job than Strand.

The Commission determined that the Board did not fairly compare the intangible personal qualities which it found so desirable in Stockton with the same qualities of Strand. The Commission’s analysis is set forth here, for it bears not only on the matter of unequal consideration; it also tends to indicate that the reasons expressed by the Board members for prefering Stockton to Strand are mere rationalizations:

School Board members claim to have based their decision to hire Stockton primarily on his “personality” and counsel-ling experience, finding that he had superior abilities in the areas of administration and working with students, teachers and parents. No comparison was made by the Board members with Strand’s ability to work with students, teachers and parents.

... When Board members considered the factors they liked in Mr. Stockton, there is no evidence that they asked themselves whether Claire Strand possessed comparable qualities.. ..

Board member Oines, for example, extolled Mr. Stockton’s rapport with the children at • the elementary school (although Stockton had spent the last two years at the high school). There was no comment made regarding Strand’s relationship with the students. Mr. Stockton’s ability to get along well with the entire community was mentioned; the Board seemed to ignore the recommendation from Victor Guthrie purportedly setting forth Strand’s concern for and ability to work well with the sizable Native community in Petersburg. Nor was Strand’s relationship with the community at large explored.

Similarly, while remarking on Stockton’s ability to get along with teachers and perform administrative tasks, no evaluation was made by Board members regarding the effect in this regard of Strand’s 25-year acquaintanceship with the Petersburg Elementary School, her three-year presidency of the local teachers’ association and her general familiarity with administrative practices through course work, the Professional Teaching Practices Commission, union activities, etc.

Wilmer Oines acknowledged that Strand’s long teaching history was a “strong point” for her. He then attempted to discount that strength by referring to the Board’s experience with Mel Hous-ley, a teacher who agreed, upon Board request, to fill a superintendent’s position only to discover that his aptitude for administration was limited. Strand, of course, had actively sought the post, contrary to Housley. Stockton, moreover, had also “risen” from the teaching ranks. The important point — that Strand was intimately familiar with the children, teachers, routines, problems, strengths and weaknesses of the elementary school — was apparently not afforded much weight.

The Commission cannot state that based on the applicants’ respective qualifications Ms. Strand was more qualified and should have been selected. However, the Commission can and does find that the one-sided analysis apparently performed by the Board and presented at the hearing constituted an unlawful discriminatory practice....

The above discussion by the Commission is an accurate reading of the testimony presented.⁵ At the hearing the Board members did emphasize Stockton’s leadership traits and his administrative abilities, while making almost no mention as to the presence or absence of comparable charae-teristics in Strand. It was permissible for the Commission to infer from this body of testimony that a one-sided consideration of the candidates’ comparative qualities was performed. While that was not necessarily the only inference which might be drawn from the testimony, it was a reasonable one, and as such it may not be disturbed judicially.⁶

THE STATISTICAL EVIDENCE

The Commission also found that nine principals and superintendents had been hired in the Petersberg Public Schools over the period of the past twenty-five years, none of whom were women.

In Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978) this court stated that once a prima facie case of discrimination is established statistical evidence of a discriminatory pattern “is to be viewed as evidence that the non-discriminatory justification given by the defendant is in fact a pretext.” Strand has established that the Board failed to make a fair comparison of her qualities with those of Stockton; that is more than sufficient to give rise to a prima facie case.⁷ The statistical evidence of a pattern of sex discrimination is therefore significant.

The fact that no women have been hired casts in a suspicious light the reasons given by the Board members for preferring Stockton to Strand. If all school administrators have always been men there may have been an understandable tendency to conclude that women do not have the intangible qualities needed to be good administrators, simply because they are not men. Reliance on such factors as personality and leadership may be nothing more than a subconscious perpetuation of sexual stereotypes. The Commission explained quite well the application of this principle to this case:

In the context of human rights law, the particular danger in relying on factors such as “personality , and to a lesser extent on such overbroad categories as ability to work with people and administrative competence, is that the vagueness of these considerations opens the door to discrimination, albeit perhaps, completely unintentional. In [Kinsey v. First Regional Securities, Inc., 557 F.2d 830, 838 (D.C.Cir.1977) ], a Black man applied to be a securities salesman with the respondent company; he was rejected. The record indicated that the company required that its sales personnel have the ability to “gain the confidence of prospective clients by exuding integrity, reliability and long-term service.” Id. at 838. Such attributes are almost as vague as those at issue in this case. The court stated:

An employer in a profession which traditionally has been white may unknowingly gauge a minority group applicant against the white stereotype, and conclude that he lacks the intangible qualities indicative of professional aptitude and competence....

Here, there is a real danger that given the fact that the positions of principal for both the elementary and high school, as well as the superintendent’s position, have always been occupied by men, the Board may have been predisposed to find the attributes it was looking for in a man, rather than a woman. This danger was compounded by the lack of interviews with the applicants, and the fact that complainant’s long tenure with the District as a teacher may have made it difficult for Board members to conceptualize her in an administrative role. They never discussed what plans either she or Mr. Stockton might have for improvements or changes in the current school program.

CONCLUSION

The Commission’s decision is supported by substantial evidence. Its finding that the Board did not fairly compare the personality characteristics on which it relied in hiring Stockton with those of Strand is a permissible inference which tends to indicate sex discrimination. Further, the evidence that no woman had been hired as a principal or superintendent in Petersburg in twenty-five years supports the same conclusion. The evidence adduced by the Board as to its reasons for selecting Stockton rather than Strand consists of nothing more than vague generalizations concerning personality traits. That evidence is neither so powerful nor so persuasive as to render the evidence supporting the Commission’s findings insubstantial in light of the entire record. Accordingly we reverse the decision of the superior court and reinstate the order of the Commission.

REVERSED.

1 . AS 18.80.220(a)(1) provides:

(a) It is unlawful for

(1) an employer to refuse employment to a person, or to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his race, religion, color or national origin, or because of his age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood!)]

2 . From their personnel files, the following comparison of their backgrounds and experience can be made:

STRAND STOCKTON

Type A teaching certificate, elementary. Type A teaching certificate, secondary.

Type B administrative certificate, principal. Type B certificate, principal.

Eastern Washington State College, B.A., Math, 1935. University of Dayton, B.S., physical education, guidance and counselling, 1964.

University of Alaska, M.A., education, 1976, with 3.75 grade point average. 60 additional hours. Central State University, M.A., education, 1968.

25 years elementary school teaching in Petersburg. Eight years high school teaching and counselling in Ohio. One year experience as swimming instructor in Petersburg. One year elementary school counselor in Petersburg. Two years high school counselor in Petersburg.

Chairwoman of statewide Professional Teaching Practices Commission. President of local teachers’ association since 1975. Member of teacher negotiating team.

3 . Petersburg Public Schools also raises an issue as to whether the superior court abused its discretion in denying an award of costs and attorney’s fees to it as the prevailing party in the intermediate appeal. In view of our decision on the merits we need not reach this question.

4 . Strand’s Type B' principal’s certificate became effective August 1, 1977, nearly two months after the application closing date. However, the beginning date of employment for the principal’s position was August 22, 1977, and Strand informed the Board that she would have a certificate by then. The departing elementary school principal had been hired under somewhat similar circumstances. It is thus apparent that Strand met the certification requirement.

5 . The record also suggests that the Board failed to seek additional information to supplement Strand’s application, which information would have furthered their comparison of the two applicants. For example, Stockton’s superior, the high school principal, personally recommended Stockton to individual Board members, but the Board never inquired of Strand’s superior. Strand’s superior testified that, had he been asked, he would have recommended her. The Board’s failure to seek additional information regarding Strand’s application provides further support for the Commission’s findings. See Alaska USA Fed. Credit Union v. Fridricksson, 642 P.2d 804, 808 (Alaska 1982).

6 . The heart of the fact-finding process often is the drawing of inferences from the evidence. A fact finder may draw inferences from the words or gestures or inflections or demeanor of a particular witness, may infer a particular basic fact from the testimony of one or more witnesses on one side or on both sides, and may infer an ultimate fact from undisputed basic facts or from an entire record of conflicting evidence.

The question for the reviewing court is thus whether the conclusions “reasonably may be based upon the facts proven.” The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported.

4 K. Davis, Administrative Law Treatise § 29.-05, at 137, 139 (1958) (footnote omitted). See also Alaska State Comm’n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980): “[W]here the evidence is conflicting, the reviewing court will not reweigh the evidence and substitute its judgment for that of the trier of fact. Thus, the evidence should be viewed in favor of the findings even though the reviewing court might have taken a contrary view of the facts.” (Footnotes omitted).

7 . In Alaska State Comm’n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980) this court adopted the four-part test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973) as the standard for establishing a prima facie case under AS 18.80.220. Under the McDonnell Douglas test, to establish a pri-ma facie case of discrimination a claimant must show:

(1) that she is a member of a protected class;

(2) that she applied for and was qualified for the position;

(3) that she was rejected despite her qualifications; and

(4) that after her rejection the employer continued to seek a person with her qualifications.

It is conceded that Strand meets the first three requirements of this test, but it is obvious that she cannot satisfy the fourth element. Her rejection occurred simultaneously wjth Stockton’s selection. Nonetheless, the McDonnell Douglas test is not the sole means by which a claimant may raise an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed.2d at 677 n. 13; see also Hagans v. Andrus, 651 F.2d 622, 625 (9th Cir.1981), cert. denied, 454 U.S. 859, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981). A wide variety of evidentiary patterns may suffice to establish a prima facie case; the primary inquiry is whether a claimant has demonstrated circumstances which, if otherwise unexplained by the employer, make it appear likely that impermissible factors played a role in the employer’s decision. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957, 967 (1978).