Scarborough v. Arnold, 7682

• Decision Date: 24 October 1977
• Docket Number: No. 7682,7682
• Citation: 117 N.H. 803,379 A.2d 790
• Parties: , 32 Fair Empl.Prac.Cas. (BNA) 206, 17 Empl. Prac. Dec. P 8359 Susan SCARBOROUGH v. Robert B. ARNOLD.
• Court: New Hampshire Supreme Court

Page 790

379 A.2d 790

117 N.H. 803, 32 Fair Empl.Prac.Cas. (BNA) 206,

17 Empl. Prac. Dec. P 8359

Susan SCARBOROUGH v. Robert B. ARNOLD.

No. 7682.

Supreme Court of New Hampshire.

Oct. 24, 1977.

McSwiney, Jones & Semple, Concord (Robert E. Bowers, Jr., Concord, orally), for plaintiff.

David H. Souter, Atty. Gen., and James C. Sargent, Jr., Asst. Atty. Gen., for the State.

Frederic T. Greenhalge, Concord, for defendant.

PER CURIAM.

This is an appeal pursuant to RSA 354-A:10 from a finding by the New Hampshire Commission for Human Rights. The Superior Court (Keller, C. J.) approved the Master's (Robert A. Carignan, Esq.) report. A ruling on a motion for clarification on the issue of damages was approved and defendant's exceptions were reserved and transferred by Flynn, J.

The defendant, Robert Arnold, owns, manages and operates a restaurant in Concord, New Hampshire. The plaintiff, Susan Scarborough, was one of fifteen to twenty persons who applied to Mr. Arnold for an advertised position of "management trainee." The ad stated that the applicant must "work well with others," but no other criteria were specified.

The record shows that the plaintiff's husband telephoned the restaurant to make an interview appointment for his wife, but was informed by an unnamed employee that the defendant was not considering women for the management position. The plaintiff herself called the next day and testified that she received the same negative response from an unnamed employee until she stated that she thought such a policy constituted sex discrimination. She was then granted an interview with the defendant. On the basis of the defendant's conduct, attitude and statements made during the course of the interview, the plaintiff concluded that the defendant would not consider her equally with male applicants. See King v. N.H. Dept. of Resources, 562 F.2d 80 (1st Cir. 1977). On March 17, 1975, she filed a complaint with the United States Equal Employment Opportunity Commission. The federal agency "deferred" the matter to the State Commission for Human Rights for investigation. See 42 U.S.C.A. § 2000c-5. On March 29, 1975, the defendant hired a male applicant who had previously worked as a short order cook in another restaurant. The plaintiff apparently lacked comparable work experience, which the defendant claims was a qualification of the position.

After investigation and hearing, the commission found the defendant to be in violation of RSA 354-A:8 I (Supp.1975), making it an unlawful discriminatory practice for an employer "because of the . . . sex . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification." It awarded plaintiff $2,500 in damages. On appeal to the superior court, the master affirmed the finding of unlawful discrimination, but recommended a remand on the issue of damages "(s)ince no evidence of damages was adduced at the hearing and there was no evidence of damages in the record . . . ."

The defendant contests the sufficiency of the plaintiff's evidence and certain procedural matters. We find that the commission's findings of basic facts are insufficient to enable us to assess the validity of the commission's conclusion that there has been a violation of RSA 354-A:8 I (Supp.1975), and accordingly the matter must be remanded for clarification.

RSA 354-A:9 II requires the commission upon finding "any unlawful discriminatory practice," to state its findings of fact. The complete findings and the commission's ultimate conclusion in the instant case were as follows:

"1. Complainant Susan Scarborough, having answered an advertisement for a Management Trainee published by the Respondent, R.T.P. Enterprises, Inc., (Weeks Ice Cream, Inc.) in the Concord Monitor 3/7/75, was interviewed 3/10/75 by Mr. Robert B. Arnold, President R.T.P. Enterprises, Inc., and was actively dissuaded from applying for the position of Management Trainee;

"2. Mr. Arnold under examination testified he had suggested to the Complainant she "would be happier" and "make more money" as a waitress;

"3. Mr. Arnold in testimony stated he had not made similar recommendations to male applicants for the position of Management Trainee;

"4. In testimony Mr. Arnold stated that in his considerable experience and background as manager and/or owner of like and similar businesses (Friendly Ice Cream, Weeks Ice Cream) that, although there had been female applicants for Management Trainee positions, he had never hired a female for said position;

"5. Therefore, in light of the Respondent's testimony, the Commission finds R.T.P. Enterprises, Inc., (Weeks Ice Cream, Inc.), and its President Robert B. Arnold, in violation of NHRS 354-A:8, I."

Although the commission determines that there has been a violation of RSA 354-A:8 I (Supp.1975), it does not specify the nature of the unlawful discriminatory practice involved. Two theories exist under section 8 (I) which support the commission's conclusion: discriminatory refusal to hire, and wrongful failure to fairly consider an applicant because of sex. The commission's findings of basic fact, however, are too incomplete to enable us to determine which of these theories was utilized, or if it was correctly applied. "A reviewing court needs findings of basic facts to understand administrative decisions and to ascertain whether the facts and issues considered sustain the ultimate result reached." Society for Protection of N.H. Forests v. Site Evaluation Comm., 115 N.H. 163, 173, 337 A.2d 778, 786 (1975); accord, Foote v. State Personnel Comm'n, 116 N.H. 145, 148, 355 A.2d 412, 414 (1976); see K. Davis, Administrative Law Text § 16.04 (3d ed. 1972).

In considering what constitutes proof of discriminatory failure to hire under our "Law Against Discrimination," RSA 354-A, as amended, (Supp.1975), it is helpful to look to the experience of the federal courts in construing the similar provisions of Title VII of the 1964 Civil Rights Act. See RSA 354-A:3(4). In the leading case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court set forth "the order and allocation of proof in a private, non-class action challenging employment discrimination" under Title VII:

"The complainant . . . must carry the initial burden under the statute of establishing a prima facie case of . . . discrimination. This may be done by showing (i) that he belongs to a . . . minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. . . .

"The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. . . .

"(Finally, the employee must) be afforded a fair opportunity to show that (the employer's) stated reason for (the) rejection was in fact pretext."

In the instant case the commission wholly ignored the matter of job qualifications. Plaintiff's evidence tended to show, if only inferentially, that the applicant would be "trained" and thus that substantial grill experience was not a qualification for the position; defendant's evidence was that prior grill experience was of considerable importance. The commission's findings do not resolve this evidentiary conflict. Furthermore, even if grill experience were not a stated qualification of the job, the lack of such experience in an applicant established a legitimate, nondiscriminatory reason for the preference of an applicant having such experience. Thus, defendant's evidence would have satisfied his burden "to articulate some legitimate reason for the rejection." The question then becomes whether the stated reason is bona fide or merely pretextual. The commission's findings fail to make this necessary determination.

Even where a case of discriminatory failure to hire is not made out, where a job applicant qualifies for at least initial consideration, a failure to fairly consider an application because of sex amounts to prohibited conduct under RSA 354-A:8 I (Supp.1975). "While the ultimate prize was won by the male who had superior qualifications, this in our view does not purge (the employer) of its prior discriminatory act of refusing to consider her at all not solely because of lack of qualification but because she was a woman." Gillin v. Federal Paper Board Co., 479 F.2d 97, 102 (2d Cir. 1973); see King v. New Hampshire Dept. of Resources, 420 F.Supp. 1317, 1326 (D.N.H.1976) aff'd, 562 F.2d 80 (1st Cir. 1977). RSA 354-A:3(4). The commission's findings of basic fact indicate that the defendant held discriminatory attitudes toward women applicants, but the commission failed to ascertain whether the defendant indulged his prejudices in this case or whether he gave the plaintiff fair consideration despite his feelings. Without such a determination, we cannot assess whether the commission in fact utilized a refusal to fairly consider theory or, if it did so, whether this theory was correctly applied under the facts of this case.

Finally, the commission neglects to enlighten us as to the basis of its $2,500 damage award. Although the commission does not label this amount as back pay, the award's substantial size indicates that such may be its origin. An award of back pay would be appropriate if the commission had properly found for the plaintiff on the basis of a discriminatory failure to hire, but would not necessarily be correct under a failure to consider theory.

It is true that administrative findings of fact are deemed to be prima facie lawful and reasonable, and that an agency's...