Hoppe v. McDonald

• Decision Date: 27 April 1982
• Docket Number: No. 13659,13659
• Parties: , 30 Empl. Prac. Dec. P 33,317 Betty HOPPE, an individual, Plaintiff-Appellant, v. Scott McDONALD, Director of the Idaho Department of Employment and the IdahoDepartment of Employment, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 355

644 P.2d 355

103 Idaho 33, 30 Empl. Prac. Dec. P 33,317

Betty HOPPE, an individual, Plaintiff-Appellant, v. Scott McDONALD, Director of the Idaho Department of Employment and the IdahoDepartment of Employment, Defendants-Respondents.

No. 13659.

Supreme Court of Idaho.

April 27, 1982.

Lloyd J. Walker, Twin Falls, for plaintiff-appellant.

David H. Leroy, Atty. Gen., R. LaVar Marsh, Jeanne T. Goodenough, Carol Lynn Brassey, Deputy Attys. Gen., Boise, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a judgment which denied claims of sex discrimination brought by plaintiff-appellant, Betty Hoppe, against her former employers, defendants-respondents. Hoppe asserted that while she was employed by the Department she was, on the basis of her sex, denied a promotion, and also that she did not receive pay equal to male co-employees, although her work was substantially equal in nature to male co-employees. Following trial, the district court held that Hoppe had failed to prove that she had been the victim of any unlawful discrimination. We affirm.

Hoppe was employed in the Twin Falls office of the Department from October 1, 1970, through December 13, 1973. She had no college education but had graduated from high school and had a significant amount of prior work experience. She was hired in the highest job classification for which she was qualified in view of her prior work experience, i.e. "Interviewer II", in pay grade 7. It is not disputed that Hoppe was an outstanding employee and received excellent job performance evaluations. Although she received no promotions as such, she did receive several in-grade, or "step" pay increases, which were granted automatically upon an employee's satisfactory job performance. As a result of those pay increases, her salary increased over the three-year period of her employment from $527 to $673 per month.

Hoppe was initially assigned the duties of "Selection and Referral Officer" and she worked in that capacity until January, 1972, when she became an "Employer Relations Representative". In May, 1973, Hoppe was additionally assigned a portion of the duties of "Twin Falls Labor Market Analyst". Prior to Hoppe's employment, one Slotten had performed the duties of "Selection and Referral Officer". Slotten's actual job classification was that of "Employment Counselor", and he was in pay grade 10. Hoppe replaced Slotten as "Selection and Referral Officer". In January, 1972, Hoppe was replaced as "Selection and Referral Officer" by one Clark. Clark held a job title of "Employment Counselor" and was in pay grade 10. When Hoppe was assigned to the position of "Employer Relations Representative", she replaced one Omlid, whose job title was "Employment Consultant II", and was in pay grade 10. During the summer of 1973, an opening was announced for the position of manager of the Department's office in Jerome. Twelve applicants, including Hoppe, applied for the position. A promotional review board was convened and the applicants were rated. The top three rated applicants were certified to a selecting official, and the top rated applicant, a male, was appointed to the position. Hoppe was not rated among the top three applicants, nor was she the highest rated female applicant.

In the fall of 1973, Hoppe applied for a promotion to the classification of "Consultant I" in pay grade 8. That position was to be filled from a register of the individuals who met the minimum qualifications and who had passed an examination. Hoppe took and passed the exam, was approved for the promotion, would have received the promotion in February, 1974, but she resigned from the Department on December 13, 1973.

Thereafter Hoppe filed a complaint with the Idaho State Commission on Human Rights, alleging sex discrimination in the promotion and pay practices of the Department and also asserting that she had been constructively discharged. That Commission found that the practices and procedures of the Department's promotional policies denied women equal opportunity with men, and concluded that the Department had discriminated against Hoppe, recommending, among other measures, that Hoppe be awarded back pay. The Department refused to conciliate and this action resulted. Upon motion for summary judgment, the district court held that it was bound by the findings of the Commission and granted judgment in favor of Hoppe. On appeal, this court held that the findings and recommendations of the Commission on Human Rights had no binding effect on the district court, and therefore reversed and remanded for further proceedings. Hoppe v. Nichols, 100 Idaho 133, 594 P.2d 643 (1979). On remand, a trial de novo was held by the district court, sitting with an advisory jury. The district court held that the Department had not discriminated against Hoppe on the basis of her sex and entered judgment in favor of the Department.

Hoppe first asserts that the district court erred in its utilization of an advisory jury. I.R.C.P. 39(c) provides:

"In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right."

Here the action was one triable of right by a jury and neither party demanded a jury trial. Hence Hoppe argues that the court was without authority to, on its own motion, try the case with an advisory jury.

Although neither party requested a jury trial or explicitly consented to the use of an advisory jury, neither party objected to the advisory jury. A litigant may not remain silent as to claimed error during a trial and later urge his objections thereto for the first time on appeal. Bradford v. Simpson, 97 Idaho 188, 541 P.2d 612 (1975). Ordinarily an objection not made at trial will not be considered on appeal, Kock v. Elkins, 71 Idaho 50, 225 P.2d 457 (1950), unless the objection raises a question of jurisdiction, Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976), or that the pleading fails to state a cause of action, Webster v. Potlatch Forests, 68 Idaho 1, 187 P.2d 527 (1947). The instant case falls into none of the exceptions to the rule. Nor is this a case in which the trial court committed "plain" or "fundamental" error so substantial as to result in injustice or to take from the appellant a right essential to her case. Johnson v. Elliott, 112 Ariz. 57, 537 P.2d 927 (1975); Heacock v. Town, 419 P.2d 622 (Alaska 1966); cf. State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971).

Hoppe asserts that the trial court erred in depending upon the advisory jury's answers to the courts interrogatories, rather than making its own independent findings of fact, but this argument is not supported by the record. The trial court's memorandum decision contains a detailed discussion of the jury's answers to each interrogatory as well as the court's own factual findings in regard to those interrogatories. While the court's findings are largely in agreement with those of the advisory jury, there is some specific disagreement with the jury's answers and it is thus clear that the trial court did not believe itself bound by the advisory jury's findings and made its own independent findings of fact.

Hoppe next asserts that the trial court erred in its finding that Hoppe was not denied promotion to the position of manager of the Department's Jerome office by reason of her sex. I.C. § 67-5909, upon which Hoppe's claim is based, provides in pertinent part:

"Acts prohibited. It shall be a prohibited act to discriminate against a person because of, or on the 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..."

Federal case law under Title VII, 42 U.S.C. § 2000e-2(a), is instructive as to the necessary quantum of proof and the applicable standards for adjudication in sex discrimination cases. Bowles v. Keating, 100 Idaho 808, 606 P.2d 458 (1979).

It is held that a plaintiff alleging unlawful discrimination must prove by a preponderance of the evidence that she applied for an available position, for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here Hoppe presented a prima facie case creating the inference of sex discrimination, thus shifting to the Department the burden to "articulate some legitimate nondiscriminatory reason" for Hoppe's rejection. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824. Burdine, supra, clarified the nature of the burden that thus shifts to the defendant:

"The burden that shifts to the defendant ... is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. (citation). It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the...