E.D. Swett, Inc. v. New Hampshire Com'n for Human Rights

• Decision Date: 30 December 1983
• Docket Number: No. 82-361,82-361
• Citation: 470 A.2d 921,124 N.H. 404
• Parties: , 43 Fair Empl.Prac.Cas. (BNA) 1186, 34 Empl. Prac. Dec. P 34,484 E.D. SWETT, INC. v. NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS and Leonard Briscoe.
• Court: New Hampshire Supreme Court

Page 921

470 A.2d 921

124 N.H. 404, 43 Fair Empl.Prac.Cas. (BNA) 1186,

34 Empl. Prac. Dec. P 34,484

E.D. SWETT, INC. v. NEW HAMPSHIRE COMMISSION FOR HUMAN RIGHTS and Leonard Briscoe.

No. 82-361.

Supreme Court of New Hampshire.

Dec. 30, 1983.

Devine, Millimet, Stahl & Branch P.A., Manchester (Joseph A. Millimet, Manchester, on brief and orally), for plaintiff.

Gregory H. Smith, Atty. Gen. (Peter T. Foley, Concord, on brief and orally), for the New Hampshire Commission for Human Rights.

Upton, Sanders & Smith, Concord (Katharine A. Daly, Concord, on brief and orally), for Leonard Briscoe.

BROCK, Justice.

The defendants, the New Hampshire Commission for Human Rights (commission) and Leonard Briscoe, appeal from a Superior Court (Cann, J.) order approving a Master's (Robert C. Varney, Esq.) recommendation that awards of compensatory damages and counsel fees made against the plaintiff, E.D. Swett, Inc. (Swett), be set aside. Swett cross-appeals, arguing that the scope of judicial review by the superior court was too narrow and that the commission incorrectly applied the evidentiary standards and methodology for adjudicating disparate treatment in hiring. Swett contends therefore that, while the denial of compensatory damages and counsel fees should be affirmed, the commission's finding of discrimination and award of back pay to Briscoe should be reversed. For the reasons that follow, we affirm in part and reverse in part.

Mr. Briscoe is a black construction worker and carpenter. Swett is a bridge construction company engaged in construction work throughout New Hampshire. Briscoe worked for Swett as a laborer on a project in Hart's Location from July 1978 until November 1978, at which time he was laid off because of the seasonal character of construction work.

In the spring of 1979, Briscoe applied for work with Swett at its Lisbon job site. The date when Briscoe first applied at the Lisbon site in 1979 is disputed. Swett hires at the job site and does not use written applications. Both Swett's project superintendent, who has hiring authority, and its timekeeper recall that Briscoe first applied around the middle of May. Briscoe claims that he first applied around the end of March and then reapplied several more times between April and June of 1979. Each time, Briscoe contends, he talked to either the project superintendent or the timekeeper and was told there were no job openings.

In hiring employees, Swett has a policy of seniority preference, i.e., someone who has worked for Swett is preferred to someone who has never worked for that company, assuming both are qualified for the job opening. In April, May, and June, Swett hired, in succession, two white male laborers and a white male carpenter, all of whom had never previously worked for Swett. Briscoe claims that, although he had not specified what type of work he was looking for at Lisbon, he had previously told Swett that he was qualified as a carpenter and so expected to be considered for either a laborer's or a carpenter's position. Swett claims that it did not know Briscoe was qualified as a carpenter.

In July 1979, Briscoe filed with the commission a charge of racial discrimination in hiring against Swett. After a hearing at which all parties presented evidence, the commission found in favor of Briscoe and ordered Swett to pay him back pay, compensatory damages, and attorney's fees.

Swett appealed the commission's finding of discrimination and its award of compensatory damages and counsel fees to the superior court. In July 1982, the superior court upheld the commission's finding of unlawful discrimination but set aside both the award of compensatory damages and the award of attorney's fees as being in excess of the commission's statutory powers.

The first issue raised by Swett in this appeal is the proper scope of review by the superior court of orders made by the commission. RSA 354-A:10 states in pertinent part: "The findings of the commission as to the facts shall be conclusive if supported by sufficient evidence on the record considered as a whole." Swett argues that this statute does not give the commission's findings a presumption of reasonableness, such as that found in RSA 541:13 governing appeals to this court from orders of certain administrative agencies. Rather, Swett contends, RSA 354-A:10 permits the type of review which exists under statutes governing the review of the suspension, revocation, or denial of licenses. See Allard v. Power, 122 N.H. 27, 28, 440 A.2d 450, 451 (1982); Kozerski v. Steere, 121 N.H. 469, 472, 433 A.2d 1244, 1245 (1981). Accordingly, Swett claims that the superior court may hear additional evidence. We disagree.

RSA 354-A:10 allows parties aggrieved by a decision of the commission to file a petition in the superior court requesting that it remit the case to the commission for the purpose of taking additional evidence if the party shows reasonable grounds for its failure to present such evidence originally. We believe that this statutory provision indicates a legislative intent that the superior court itself not be involved in taking further evidence. This provision of RSA 354-A:10 would be superfluous if we were to hold otherwise.

We conclude that the scope of review envisioned under RSA 354-A:10 is analogous to that under RSA 541:13. See Scarborough v. R.T.P. Enterprises, Inc., 120 N.H. 707, 710, 422 A.2d 1304, 1307 (1980); Scarborough v. Arnold, 117 N.H. 803, 809, 379 A.2d 790, 794 (1977). Based on the record before us, we hold that the superior court applied the correct standard of review in this case.

Swett next argues that the commission did not apply the correct evidentiary standards and methodology for proof of disparate treatment in hiring. The commission's application of an incorrect legal standard would constitute an error of law permitting the court to set aside the commission's order notwithstanding any presumption of propriety which may be given its fact finding.

The United States Supreme Court has set forth the allocation of burdens and the order of presentation of proof in a private, non-class action alleging employment discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). We have applied these criteria to cases brought under RSA chapter 354-A. See Scarborough v. Arnold, 117 N.H. at 807-08, 379 A.2d at 793. Under this case law, Briscoe may make out a prima facie case of discrimination by showing (1) that he belonged to a minority; (2) that he applied for and was qualified for a job for which the employer was seeking applicants; (3) that despite his qualifications he was rejected; and (4) that after his rejection the position remained open and the employer continued to seek applicants with Briscoe's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824; Burns v. Town of Gorham, 122 N.H. 401, 406-07, 445 A.2d 1111, 1114 (1982).

The commission found that Briscoe had satisfied the four elements of a prima facie case. A presumption of discrimination then arose, and the burden shifted to Swett to produce evidence that Briscoe was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. See Burns v. Town of Gorham, 122 N.H. at 408, 445 A.2d at 1115 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). The commission expressly declined to credit the testimony of Swett's project superintendent and its timekeeper that they did not know that Briscoe had training and experience as a carpenter, and that he first came to the Lisbon site in the middle of May and not before. The commission did so in view of Briscoe's testimony and other evidence he presented, including witnesses who testified that they had accompanied Briscoe to the Lisbon site prior to the middle of May 1979.

Swett argues that the testimony of Swett's witnesses was that they did not recall Briscoe applying before the middle of May, which implies that Briscoe was simply overlooked and thus the victim of an innocent error. However, Swett argues, even if the commission did not credit this testimony, a disbelief of Swett's credibility is an inadequate basis upon which to find intentional discrimination on the basis of race which is the ultimate burden Briscoe bears. We disagree.

Direct proof of discriminatory intent may be difficult. The prima facie case serves as a means by which proof of discriminatory intent can be inferred from circumstantial evidence. See Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L.Rev. 292, 299-300 (1982). "Prima facie case," in the context of employment discrimination, is used in the sense of a legally mandatory, rebuttable presumption. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7. Therefore, if the employer fails to rebut it, the legally mandatory presumption of intentional discrimination prevails and judgment is for the complainant. See id. at 254, 101 S.Ct. at 1094.

To satisfactorily rebut a prima facie showing of discrimination, Swett must "articulate some legitimate, nondiscriminatory reason for [Briscoe's] rejection." McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. We believe that implicit in this burden is the requirement that Swett's evidence must also be credible. " '[A] "prime facie" case so made out need not be overcome by a preponderance of the evidence, or by evidence of greater weight; but the evidence needs only to be balanced, put in equipoise, by some evidence worthy of credence ....' " 9 J. Wigmore, Evidence § 2487 at 297 (Chadbourn rev. 1981) (quoting Speas v. Merchants' Bank & Trust Co., 188 N.C. 524, 530, 125 S.E. 398, 401 (1924)) (emphasis added); see United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1481 n. 3, 75 L.Ed.2d...