Kilmark v. Board of Regents

• Decision Date: 10 September 1985
• Docket Number: 70244,Nos. 70243,s. 70243
• Citation: 334 S.E.2d 890,175 Ga.App. 857
• Parties: KILMARK v. BOARD OF REGENTS. BOARD OF REGENTS v. KILMARK.
• Court: Georgia Court of Appeals

Page 890

334 S.E.2d 890

175 Ga.App. 857

KILMARK v. BOARD OF REGENTS.

BOARD OF REGENTS v. KILMARK.

Nos. 70243, 70244.

Court of Appeals of Georgia.

Sept. 10, 1985.

Martha M. Pearson, Athens, for appellant.

Michael J. Bowers, Atty. Gen., Wayne P. Yancey, Jr., Carl C. Jones, Sr. Asst. Attys. Gen., for appellee.

BEASLEY, Judge.

These appeals are from the Superior Court of Forsyth County affirming in part and reversing in part an order of a special master appointed by the Georgia Office of Fair Employment Practices (GOFEP). The case arose on November 5, 1981, when Patricia Kilmark, a white female County Extension Agent employed by the Georgia Cooperative Extension Service under the supervision of the Board of Regents of the University System of Georgia, and the Board of Commissioners of Forsyth County, filed a charge of discrimination with the Equal Employment Opportunity Commission, which referred the charges to the Georgia agency. After a finding of reasonable cause by GOFEP and appointment of the special master, a two-day hearing was held, resulting in a final order finding that the Board of Regents had discriminated against Ms. Kilmark on the basis of her sex when it selected Mr. Hugh McMillan as director of the Forsyth County Extension Service Office.

The evidence presented and the facts as found by the special master may be summarized as follows. In August of 1981 the position of County Extension Director (CED) became vacant upon the retirement of Walter Rucker, the agent who had held the position in Forsyth County since its inception about 28 years previously. The responsibilities for this position are administrative in nature, including supervision of the other county agents and secretaries, liaison between the County Extension Office and the Board of County Commissioners and the Board of Education (primarily the presentation of an operating budget to the Boards), and coordination of all the extension programs. Prior to 1973 a degree in agriculture or a related field was a prerequisite for the position, but it was abandoned in recognition of the administrative nature of the job duties. This requirement had the effect of eliminating from consideration the female county agents with degrees and expertise in home economics. In spite of the modification, at the time the charges were filed there were only 12 female CEDs out of a total of 153, only one more than when the change was implemented in 1973 and 11 women were immediately appointed, while 46% of the agents in the state were female.

The practice and policy of the Board of Regents is to assign the leadership responsibilities to an agent already on the staff of a particular county office when a vacancy occurs. The Extension Service, a component of the University of Georgia and thus under the general supervision of the Board of Regents, is divided into districts, each of which has a director with authority to make recommendations concerning employment and position assignment. When Rucker retired, two agents in Forsyth County were considered for the assignment as CED, Kilmark, then aged 41, and McMillan, then aged 26.

Kilmark was first employed by the Extension Service in DeKalb County in 1968 with major program responsibilities in the areas of 4-H and youth activities and adult home economics. On May 1, 1981, she was promoted to the position of Home Economics Coordinator and transferred to Forsyth County, receiving a 15% increase in salary. She has a B.S. degree in Vocational Home Economics Education from Michigan State University and a M.A. in Education from Murray State University.

McMillan began employment with the extension service in Forsyth County in January of 1979, having previously held only part-time jobs as a student. He had received a B.S. degree in Animal Science from the University of Georgia in 1977 and completed 65 hours of study at the school of veterinary medicine at the University of Georgia at what the Board of Regents considered to be an honors level. The description of the requirements for the position of CED requires "an appropriate Master's degree from, or admission to, an approved graduate school."

The appointment procedures for the promotion to CED are extremely informal throughout the state, with no applications taken and no persons interviewed. Usually the District Director of the County Extension Service and the County Administrator recommend an individual from the county staff to the Board of County Commissioners for final approval, and in this instance Kilmark was informed by the District Director that he would recommend appointment of a new CED after two vacant agent positions were filled by November 1, 1981. However, on October 16 he recommended McMillan for both agent and CED with almost a 31% increase in salary. The selection was made prior to filling the staff vacancies because of budgetary constraints. The recommendation was approved and announced on October 19.

The District Director testified that McMillan's selection over Kilmark was based on a number of factors. During the selection process the Forsyth County Board of Commissioners adopted a resolution, dated September 1, recommending McMillan for CED and reciting that the Board had received numerous complimentary remarks concerning his work from Forsyth County citizens and that he was highly accepted in the community. The Board of Regents contended that McMillan's management and leadership skills were superior to Kilmark's, but the special master found no evidence to support this evaluation as the Board was unable to give any examples demonstrating his skills. She found rather that neither McMillan nor Kilmark had had any "significant" experience in management or administration, although Kilmark had recently been promoted to the position of Home Economics Coordinator, which required that she create and implement an entirely new adult home economics program in Forsyth County. Also, witnesses for both parties testified as to Kilmark's successful stimulation of community interest in, and support of, her programs. In her only written evaluation in Forsyth County, Rucker gave her a score of 8 out of a possible 10 and noted that she had "received positive community support." While McMillan's performance in the 4-H and youth program was also rated 8 out of 10, McMillan himself admitted that the program had long been popular in the school system and that he was not responsible for creating the program or stimulating community interest and participation.

The special master also considered the inconsistencies in appellants' defenses that Kilmark had had interpersonal difficulties and that McMillan had superior human relations skills. The District Director first testified that Kilmark's performance as a home economist had been good, but indicated that some problems developed with her programs after she became coordinator in Forsyth County. However, none of these problems were mentioned in her written evaluations or were revealed until after she filed charges of sex discrimination. The district Home Economics Supervisor testified that Kilmark's programs overemphasized crafts and that she overutilized community resource persons rather than teaching the programs herself, but she was able to identify only one craft-related program Kilmark had presented in Forsyth County, and this was after the promotion decision had been made. The supervisor further testified that she had counselled Kilmark (and other home economic agents as well) with respect to both of these problems before Kilmark's promotion to Coordinator in Forsyth County. Testimony by Rucker and McMillan, that Kilmark had interpersonal difficulties with office personnel and community members, was likewise contradicted and discredited by the witnesses alleged to have voiced such opinions, and there was again no mention of any such problems in her written evaluations. The suggestion that Kilmark was not as qualified for the position as McMillan because she did not establish a permanent residence in Forsyth County was without foundation. Kilmark testified that from the time she began her employment in Forsyth County she rented a house and spent at least 80% of her time in the county; that at no time did she commute; that she held programs and attended county meetings at night. There was also evidence that numerous CEDs in other counties did not live in the county of their employment and that CEDs often transferred from county to county, leading to the inevitable conclusion that there was no apparent correlation between effectiveness as a CED and the county of residence. Finally, in regard to the resolution passed by the Board of Commissioners endorsing McMillan's appointment on September 1 immediately following Rucker's retirement, there was no evidence that anyone other than McMillan was considered or that any members of the public had any knowledge of the candidates for the position. Nor was there any evidence that members of the public had expressed a desire that McMillan be appointed, which is what the chairman of the commission and the County Administrator stated was the basis of the endorsement, or that either of these witnesses had any professional contact with McMillan as an agent. While the County Administrator testified that he expressed a negative reaction to Kilmark during the selection process, the letter written to "confirm" the discussion of his negative reaction was dated more than a month and a half after the meeting and two weeks after Kilmark brought sex discrimination charges.

Based on her findings of fact, the special master concluded that appellants had engaged in an unlawful practice in violation of OCGA § 45-19-29(1); that the alleged nondiscriminatory reasons advanced for hiring McMillan were unsupported by the evidence, pretexual in nature or not legitimate bases for decision; and that these reasons were particularly suspect given the subjective nature of the qualifications,...