Cunico v. Pueblo School Dist. No. 60

Citation917 F.2d 431
Decision Date19 October 1990
Docket NumberNos. 88-2727,88-2779,No. 60,60,s. 88-2727
Parties54 Fair Empl.Prac.Cas. 88, 54 Empl. Prac. Dec. P 40,335, 63 Ed. Law Rep. 713 Connie CUNICO, Plaintiff-Appellee, v. PUEBLO SCHOOL DISTRICT NO. 60, a public corporation, Defendant-Appellant, R. Michael Holmes; William J. Ballas; Jo Ann Lane; Alan Takaki, members of the Board of Education of School District; Phillip H. Schoo, Superintendent of Public School; Daniel F. Martinez, the designated hearing officer for the Public Schoolreduction in force; and Vern Cochran and Dr. Vallejo, administrators of the Defendant School District, Defendants.
CourtU.S. Court of Appeals — Tenth Circuit

Joseph James Lenihan, Pueblo, Colo., for plaintiff-appellee.

Kathleen K. Hearn (David W. Crockenberg and Thomas T. Farley on the brief) of Petersen & Fonda, Pueblo, Colo., for defendant-appellant.

Before ANDERSON and BRORBY, Circuit Judges, and THEIS, * District Judge.

THEIS, District Judge.

I.

This appeal follows a trial to the court brought under 42 U.S.C. Secs. 1981, 1983, and under Sec. 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-5, in which plaintiff alleged that she had been discriminated against in her employment by defendant-appellant School District. The trial court found in plaintiff's favor on the issues of liability and awarded various forms of relief, from which defendant appeals. 693 F.Supp. 954. The court also denied plaintiff's costs for an expert witness and plaintiff appeals this order. 705 F.Supp. 1466. We affirm. 1

Connie Cunico is a white woman who began her employment with School District 60 ("the District") on February 27, 1977 as a social worker. She had obtained her masters degree in social work and was certified under state law. Colorado statutory law classifies its teachers and other professional personnel in the public schools according to a certification system. Under this system, school social workers, as well as numerous other non-teaching professionals, must be certified as "Type E" employees by the State Board of Education. Type E certificate holders are further classified by "endorsements," one of which is the endorsement of social worker. Regardless of the particular endorsement, Type E certificate holders are employed as "probationary employees" for their first three years, after which time they receive "tenure status." Accordingly, plaintiff's employment contract for the school year 1981-82 specified her status as "tenure." Although plaintiff testified that she understood tenure status to mean that she had achieved "job security" after her third year of employment, this classification was not the equivalent of statutory tenure under the Colorado Teacher Employment, Dismissal and Tenure Act, ch. 435, 1967 Colo.Sess.Laws 976 (codified as amended at Colo.Rev.Stat. Sec. 22-63-101 et seq. (1973 & Supp.)). With respect to its social workers, the practice of the District was to enter into annual contracts each school year that lasted 205 days, which was the term of plaintiff's contract for the 1981-82 school year. 2 Plaintiff's Eht. 45.

The District began experiencing financial difficulties during the 1981-82 school year, forcing the Pueblo School Board to reduce its expenditures by various budgetary measures. Among the measures ultimately adopted by the Board was the cancellation of the contracts of certain employees. The Board sought to minimize the disruption of actual classroom teaching by making its expenditure cuts as far away from the classroom as possible. Because the activities of social workers did not directly relate to the classroom, this endorsement received low priority in developing a layoff policy, and the Board initially decided to cancel the contracts of all social workers in the District. This decision was modified, however, when the Board learned that state law required it to retain at least two social workers. To fulfill this requirement, the Board elected to retain Paula Pearson and Martin Quintana, the two social workers who had been employed the longest in the District. The contract of Connie Cunico, who held the third most senior position in the District, as well as the contracts of the other remaining five social workers were to be cancelled.

The Board developed a written policy and appeal procedure governing its reduction in force ("RIF") decisions. Defendant's Ehts. G, I. The policy statement defined "teacher" to include "other persons certified by the State Board of Education." Defendant's Eht. I. Contracts for these teachers within each endorsement area were to be cancelled according to the seniority of their probationary status, "followed by the least tenured teachers thereafter." Id. at p 3. In addition, the District personnel office was to identify "the least seniored teacher in the district in each endorsement area in the district subject to reduction," id. at p 8, and "[i]f applicable, a choice of the declared vacancies [would] be granted to the most seniored teacher in each endorsement area in the district's reassignment pool." Id. at p 10. The RIF policy statement also provided that "[i]n the event of a reduction in force, the District shall make reasonable effort to maintain, as a minimum, the percentage of minority teachers employed within the District." Defendant's Eht. G. Those who desired to contest their cancellation could submit a written request for review by the Board's designated officer, Daniel Martinez. This review consisted of a hearing during which the sole issue for determination was "whether the decision to terminate was arbitrary or capricious with respect to the individual or [was] otherwise unjustified." Defendant's Eht. G, at 2. The hearing officer would make findings and recommendations for the Board, which would then vote on the proposed action.

All six social workers whose contracts were to be cancelled requested a hearing. Among these was the request of Wayne Hunter, the only black social worker in the District. In support of his request, Mr. Hunter submitted his belief that the District had engaged in an obvious pattern of discrimination against blacks by excluding them from administrative level positions within the district. This complaint was investigated by Robert Overstake, the Executive Director of Staff Relations, and Helen Tomicich, the Director of Human Relations/Affirmative Action. These two officials recognized that the cancellation of Mr. Hunter's contract would create a temporary setback for the District's affirmative action goals, but nonetheless found no evidence of discrimination in the decisions to reduce the number of social worker positions and to accomplish these reductions on a seniority basis. Ms. Tomicich testified before the hearing officer that although the loss of the only black administrator was a "step backwards" for the District's affirmative action policy, the financial emergency necessitated Mr. Hunter's dismissal. R. Vol. III, at 251. Ms. Tomicich also testified that the District laid off its social workers according to "seniority."

The hearing officer reviewed the proposed contract cancellations and stated his findings in a February 9, 1982 letter to the Board:

The hearing officer finds the decision to terminate the social workers was not arbitrary or capricious or otherwise unjustified except in the case of Wayne Hunter. The hearing officer interprets the policy of the Board of Education regarding minority teachers to mean that they should protect with special consideration the only black administrator in the district.

On February 12, 1982, the Board accepted the hearing officer's recommendations and rescinded the termination of Mr. Hunter's contract. The cancellation of all other social worker contracts became final.

The Board rehired Rudy Armijo, an hispanic, as a fourth social worker on August 12, 1982. Like Mr. Hunter, Mr. Armijo also had less seniority than plaintiff at the time the contracts of the social workers were cancelled. At trial, defendants contended that Mr. Armijo was rehired because of his ability to speak Spanish, which would facilitate communication with the families of hispanic children. Plaintiff does not speak Spanish. The job description for this position, however, did not refer to proficiency in Spanish as a job requirement or preference. Plaintiff was not rehired until August 20, 1984.

Plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission on June 4, 1982 and exhausted her administrative appeals before instituting suit in federal court. The trial court found that the District's employment decision with respect to Mr. Hunter and plaintiff was obvious and overt racial discrimination that defendants must justify by a legitimate, non-discriminatory reason. The court found that the decision to retain Mr. Hunter was not supported by any specific provision of the District's affirmative action plan or by any racial imbalance in the relevant workforce. Further, the trial court noted that black persons constitute only 2% of the relevant workforce as well as of the Pueblo population, and concluded that the scarcity of blacks in the relevant workforce was solely responsible for any perceived racial imbalance. Accordingly, the court found the District's decision to retain Mr. Hunter, when plaintiff had superior seniority rights to a third position, was an unjustified, discriminatory action entitling plaintiff to back pay from the date of her termination and to recovery of attorney's fees. The trial court also found that the District had discriminated against plaintiff a second time when it hired Mr. Armijo. The parties stipulated to the amount of back pay and medical benefits plus interest, totaling $110,361.10, and the trial court awarded plaintiff attorney's fees and costs of $76,094.90.

II.

Our review of the trial court's findings of fact is guided by the clearly erroneous standard. Under this standard, we must...

To continue reading

Request your trial
67 cases
  • United States v. Heyward
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 3, 2022
    ...and significant authorities"; it does not require that the authorities cited therein be new. See Cunico v. Pueblo Sch. Dist. No. 60 , 917 F.2d 431, 434 n.1 (10th Cir. 1990) ("[Rule 28(j) ] does not require that the supplemental authority be unavailable at the time of the briefing[.]"); PFS ......
  • Taxman v. Board of Educ. of Tp. of Piscataway
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 21, 1996
    ...in any Piscataway School is skewed. On this basis alone, the policy contravenes Weber 's teaching. See Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431, 440 (10th Cir.1990) (holding that the school district's layoff decision aimed at ensuring the employment of the district's only Black ad......
  • Peightal v. Metropolitan Dade County
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 4, 1991
    ...that Title VII claims are subject to a different legal standard than equal protection claims. Id.; see also Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431, 437-38 (10th Cir.1990). Thus, the court appears to have relied on an erroneous legal standard in resolving appellant's Title VII cl......
  • Doe v. Kamehameha Schools/Bernice Pauahi
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 5, 2006
    ...S.Ct. 2506, 138 L.Ed.2d 1010 (1997), cert. dismissed, 522 U.S. 1010, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997); Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 437-38 (10th Cir.1990) (evaluating a race conscious lay-off plan for primary and secondary school personnel under the Weber The major......
  • Request a trial to view additional results
1 books & journal articles
  • The Intersection of Inclusion, Diversity, and Risk Management in the Construction Industry
    • United States
    • ABA General Library The Construction Lawyer No. 41-1, January 2021
    • July 1, 2021
    ...decisions in a male-dominated job classification). 96. 91 F.3d 1547, 1550–52 (3d Cir. 1996). 97. Id. at 1551–52. 98. Id. at 1564. 99. 917 F.2d 431, 437 n.3, 439–40 (10th Cir. 1990). 100. 539 U.S. 306, 328 (2003). 101. Id. at 330. 102. Petit v. City of Chi., 352 F.3d 1111, 1114–18 (7th Cir. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT