State v. Whitingham School Bd.

• Decision Date: 18 December 1979
• Docket Number: No. 273-78,273-78
• Parties: , 22 Fair Empl.Prac.Cas. (BNA) 173, 22 Empl. Prac. Dec. P 30,654 STATE of Vermont v. WHITINGHAM SCHOOL BOARD et al.
• Court: Vermont Supreme Court

Page 996

410 A.2d 996

138 Vt. 15, 22 Fair Empl.Prac.Cas. (BNA) 173,

22 Empl. Prac. Dec. P 30,654

STATE of Vermont v. WHITINGHAM SCHOOL BOARD et al.

No. 273-78.

Supreme Court of Vermont.

Dec. 18, 1979.

M. Jerome Diamond, Atty. Gen., and James S. Suskin and Elizabeth Grant Rome, Asst. Attys. Gen., Monpelier, for plaintiff.

John S. Burgess, Brattleboro, and Richard F. Taylor, Middlebury, on brief, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BARNEY, Chief Justice.

This is an action brought by the Attorney General on behalf of the State of Vermont for claimed violations of the Fair Employment Practices Act, 21 V.S.A. §§ 495-495e. Penalties under the statute are civil, as are the enforcement procedures. The Vermont statute is patterned on federal law, Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. §§ 2000e-2000e-17.

This action relates to the failure of the defendant school board to hire a certain female applicant for a teaching vacancy in its system, hiring a male candidate instead. The lower court issued an order requiring the school board to hire the applicant and pay damages for lost compensation. Damages were also awarded to the State of Vermont for costs of investigation and attorneys' services.

The Whitingham School District is one of the school districts making up the membership of the Windham Southwest Supervisory Union. The Superintendent of Schools, Clarence G. Truesdell, was employed by the Whitingham School District and the other member districts acting through their supervisory union. Under the provisions of 16 V.S.A. § 242, Truesdell, as superintendent, acts as the chief executive officer for each of the duly elected school boards he serves. His duties include recommending that "the school board employ or dismiss persons as in his judgment is necessary to carry out the work of the school district." 16 V.S.A. § 242(3).

The applicant, Ms. Herbst, had been employed as a permanent substitute teacher in the Whitingham School, a twelve grade school. This was her first teaching experience. She is a graduate of the University of Pennsylvania, with a master's degree in elementary education from New York University. Her duties at Whitingham School included one month as sole teacher in the third grade, duties as a second teacher in fourth, fifth or sixth grade classrooms, and, for nearly half of her time, substituting in the high school.

During that year, Ms. Herbst was told that, due to budget cuts, the position of permanent substitute would not be renewed for the following year. Two positions were open in the elementary school division, however, one in the second grade and one in the sixth grade. She had been told by defendant Wayne Stacy, principal of the Whitingham School, that she could apply and would be considered for any open position in the school. She was interviewed by defendant Truesdell. Truesdell submitted her name to the School Board and she was interviewed by the Board. She informed them that she was primarily interested in the sixth grade position. Two men were present to be interviewed for the sixth grade opening as well. One of them was offered the position.

The Board considered Ms. Herbst qualified for the sixth grade position. The chairman of the School Board told Ms. Herbst that she was a close second in the employment decision. As it happened, the chosen candidate did not accept the position. The Board, instead of hiring Ms. Herbst, declared the position open again. She was told that she could reapply, which she did.

At the board meeting a candidate other than Ms. Herbst was hired. He was male and had taught for three years in the elementary grades in Shaftsbury, Vermont. He had teaching experience in mathematics, and had taught at the junior high school level in Baltimore, Maryland, for one year.

After Ms. Herst was informed that she had not been selected for the teaching position, she ultimately contacted the Civil Rights Division of the Attorney General's Office. This division has the responsibility for referrals from the Equal Employment Opportunity Commission under the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5(e) and (d); 21 V.S.A. § 495b. This suit alleging discrimination on the basis of sex followed.

An examination of the findings and conclusions of law in this case reveals that the trial court fully understood this to be a case of first impression in this state, and the record reflects the care and attention it gave it. The critical questions are whether or not the plaintiff established a prima facie case of discrimination, and, if so, was the defendant employer's evidence sufficient to establish some legitimate nondiscriminatory reason for the refusal to hire. The legal pattern to be followed derives from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).

The School Board concedes that the prima facie burden on the plaintiff is a relatively light one, and does not contend that it was not met. To paraphrase the burden as set out in McDonnell Douglas, supra, in terms of sexual discrimination, Jacobs v. Martin Sweets Co., 550 F.2d 364 (6th Cir.), Cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 52 L.Ed.2d 227 (1977), the plaintiff must establish that the one discriminated against belongs to a protected minority (which includes sexual classification, 21 V.S.A. § 495); that she applied for and was qualified for a job for which the employer was seeking applicants; that, despite her qualifications, she was rejected; and that after the rejection, the position was still open and the employer continued to seek applicants having qualifications like those of the person rejected.

Once the prima facie case is established, it is then the employer's burden to rebut that case by a showing that the employment decision was based on a legitimate consideration not condemnable as discriminatory under the law. Should that be accomplished the plaintiff, in turn, must be afforded an opportunity to show that the justification put forth is mere pretext. If, in such circumstances, the plaintiff cannot carry this latter burden, the refusal to hire must stand. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978).

The defendants have not challenged the application of the McDonnell Douglas test to this case, nor have they argued that the evidence does not support the trial court's conclusion that a prima facie case was made out. Rather they base this appeal on the contention that the trial court erred when it found that the prima facie case had not been rebutted. The trial court's determination turned on the asserted failure of the defendants to advance a legitimate reason for failing to offer Ms. Herbst the position before reopening applications. The defendants argue that this reopening is not the crucial issue and that, even so, the reopening was based on legitimate, nondiscriminatory considerations.

In looking to the reopening of applications as the critical act, the trial court treated as irrelevant the facts articulated by the defendants as legitimate, nondiscriminatory reasons for hiring a candidate other than Ms. Herbst. Those facts included the comparison of the...