717 F.2d 149 (4th Cir. 1983), 83-1278, Anderson v. City of Bessemer City, N.C.

Docket Nº:83-1278.
Citation:717 F.2d 149
Party Name:Phyllis A. ANDERSON, Appellee, v. CITY OF BESSEMER CITY, NORTH CAROLINA, Appellant.
Case Date:September 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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717 F.2d 149 (4th Cir. 1983)

Phyllis A. ANDERSON, Appellee,



No. 83-1278.

United States Court of Appeals, Fourth Circuit

September 19, 1983

Argued July 22, 1983.

Rehearing and Rehearing En Banc Denied Nov. 4, 1983.

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Philip M. Van Hoy, Mullins & Van Hoy, Charlotte, N.C., Arthur C. Blue, III, Whitesides, Robinson & Blue, Gastonia, N.C., on brief), for appellant.

Jonathan Wallas, John T. Nockleby, Charlotte, N.C. (Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P.A., Charlotte, N.C., on brief), for appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

K.K. HALL, Circuit Judge:

Phyllis A. Anderson filed this suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Anderson alleged that defendant, City of Bessemer City, North Carolina (the City), discriminated against her on the basis of sex when it failed to hire her as its Recreation Director. Following a bench trial, the district court, 557 F.Supp. 412, entered judgment in favor of Anderson and ordered back pay and costs, including attorney's fees. From this judgment, the City appeals. We reverse.


In the spring of 1975, the City began seeking applicants for the position of Recreation Director. A committee of five persons was appointed by the mayor to make the selection. The mayor appointed Leona (Auddie) Boone, the selection committee's only female member, to be its chairperson. The record reveals that no specific prehiring guidelines for the position had been established. 1

Eight persons applied for the job and submitted their resumes, including Anderson, who was the only female applicant. All eight applicants were interviewed by the selection committee on the same day. Following the interviews, the committee

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members determined that only three of the applicants were qualified for the job. They were Bert Broadway, Donald Kincaid, and Anderson.

For the two years immediately preceding his application, Broadway, who was a licensed recreator, had been the Recreation Director for Cramerton, North Carolina, a town located in the same county as Bessemer City. Broadway was not a college graduate, although he had taken college-level classes, including five electives in physical education. Because of his experience, Broadway was the first choice of all the committee members, including Boone, the only female member. During his interview, however, Broadway had indicated that he was unwilling to move to Bessemer City to accept the job. For that reason, the committee members eliminated him from further consideration and proceeded to decide between Kincaid and Anderson. Four members voted in favor of Kincaid because, as they testified at trial, they believed he had a superior educational background. Boone was the only member to vote for Anderson. Kincaid was hired for the position.

When he applied for the job, Kincaid was twenty-four years old. A year earlier he had received a Bachelor of Science degree in health and physical education. In connection with his college experience, Kincaid had listed on his resume the following "method and activity courses": basketball, football, baseball, volleyball, track, soccer, swimming, tennis, skiing, badminton, and golf. He also indicated that he had participated in college intramural sports. Included as other interests on Kincaid's resume were coaching, reading, and music.

At trial, Kincaid testified that as part of his college training, he had taken courses in how to teach and evaluate sports and physical education. He also testified that his course work included organizing and administering physical education programs, with an emphasis on planning and developing facilities, budgeting, purchasing, maintenance, and insurance. Finally, Kincaid stated that he had taken courses in first-aid and public speaking. Kincaid had played various sports as a high school student in Bessemer City and had served as a little league sports coach before applying for the job with the City.

Kincaid had been a student teacher of physical education at a high school in Tennessee during 1973-1974 and in 1974 received his teacher's certification after passing a national examination. When he applied for the position of City Recreation Director, he was employed in the finance department of a credit company, where he had some experience in dealing with the public.

At the time of her interview, Anderson was thirty-nine years old. In 1973, she received a Bachelor of Arts degree in elementary education. She had also taken additional courses, including a Dale Carnegie course and a class in decoupage.

Around 1956-1957, Anderson had worked approximately one year at a North Carolina state mental hospital, where she had instructed patients in recreational activities, including sports, dancing, and singing. In connection with this position, Anderson had obtained a state certificate as a Recreation Director. Although her duties at the hospital may have included some supervision of employees, she had no authority to hire, fire, or discipline them. Anderson's job experience also included being a receptionist in a doctor's office in 1959 and working as a parttime department store clerk in the early 1960's. Before applying for the job of Recreation Director, Anderson had been a substitute elementary school teacher for about ten years and had taught a third grade class in 1973-1974.

At trial Anderson testified that her duties as an elementary school teacher included being responsible for physical education and organizing and supervising children's games. She testified that she attended sports events in which her two sons participated and that she had played softball

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and basketball. 2 Anderson had also participated in various civic activities, which involved fund raising and public speaking. Her resume further indicated that she played the piano and had been a music director.

There was conflicting testimony at trial with respect to whether all of the candidates had been questioned about their amenability to travelling and working at night and about their spouses' reactions to these aspects of the job. Anderson claimed that one of the male selection committee members had posed a single question to her on these subjects, but she could not identify which committee member it had been. Boone, the committee's chairperson and only female member, testified that she did not recall other candidates being asked such questions. Boone admitted, however, that she had commented to Kincaid, "and your new bride won't mind." Another committee member testified that the inquiry about night work was asked of all applicants. According to the testimony of a third committee member, both Kincaid and Anderson had been questioned about their willingness to work at night. Kincaid testified that, although he could not pinpoint the question, he recalled communicating to the committee his understanding that the job would require after-hours work.

When the committee failed to hire her for the position, Anderson filed a charge of sex discrimination with the Equal Employment Opportunity Commission and, after receiving notice of her right to sue, brought this Title VII action. The City defended on the ground that Kincaid was hired because of his superior educational credentials. After hearing the evidence, the district court issued a Memorandum of Decision, concluding that the City's reason for hiring Kincaid was pretextual and that Anderson had been denied the job because of her sex. The district court then directed plaintiff's counsel to submit proposed findings of fact, conclusions of law, and an appropriate judgment. The City filed a motion, objecting to the delegation of this function to plaintiff and requesting the trial judge to write his own opinion. This motion was denied, but the City was invited to and did in fact respond to plaintiff's findings and conclusions after they were filed. The substance of plaintiff's submission was adopted by the trial court as the final opinion in the case.

In this opinion, the trial judge concluded that the male committee members were biased toward selecting a male, particularly one who was versed in traditionally male-dominated sports. Furthermore, in reaching his conclusion that Anderson had been discriminated against because of her sex, the trial judge specifically found that Anderson was "more qualified than Kincaid to perform the broad range of duties required of a recreation director." He further found that Anderson was the only candidate who had been asked any "serious question about night work or reaction of spouses".


On appeal, the City contends that these two critical findings of the trial court were clearly erroneous and require a reversal of the judgment in favor of Anderson. The City also challenges the trial court's conclusion that the City's refusal to hire Anderson was based on gender stereotypes and sexual bias. Finally, the City argues that the trial court unlawfully delegated to plaintiff's counsel the judicial function of writing the opinion in this case. We agree with each of these contentions.

As we recently stated in Lewis v. Central Piedmont Community College, 689 F.2d 1207, 1209 (4th Cir.1982):

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court established the basic allocation of burdens and order of presentation of proof in cases alleging discriminatory treatment. [Footnote omitted] First, the plaintiff has the burden of establishing a prima facie case of

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discrimination. Then the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for rejecting the plaintiff. The burden of proving discrimination, however, remains with the plaintiff and, therefore, if the employer presents legitimate reasons for plaintiff's rejection, it is the plaintiff's...

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