Verniero v. Air Force Academy School Dist. No. 20, 81-1793

• Decision Date: 13 April 1983
• Docket Number: No. 81-1793,81-1793
• Citation: 705 F.2d 388
• Parties: 31 Fair Empl.Prac.Cas. 871, 31 Empl. Prac. Dec. P 33,506, 10 Ed. Law Rep. 957 Joan E. VERNIERO, Plaintiff-Appellant, v. AIR FORCE ACADEMY SCHOOL DISTRICT # 20, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 388

705 F.2d 388

31 Fair Empl.Prac.Cas. 871,

31 Empl. Prac. Dec. P 33,506, 10 Ed. Law Rep. 957

Joan E. VERNIERO, Plaintiff-Appellant, v. AIR FORCE ACADEMY SCHOOL DISTRICT # 20, Defendant-Appellee.

No. 81-1793.

United States Court of Appeals Tenth Circuit.

April 13, 1983.

Judith Ward Mattox of Quiat Dice & Associates, Denver, Colo., for plaintiff-appellant.

R.E. Anderson of Horn, Anderson & Johnson, Colorado Springs, Colo., for defendant-appellee.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Plaintiff-appellant, Joan E. Verniero (Verniero) filed suit against defendant-appellee Air Force Academy School District # 20 (School District) alleging discrimination based on sex under Title VII of the Civil Rights Act as amended, 42 U.S.C.A. Sec. 2000e et seq. (1981). The basis of the complaint was that the School District discriminated against Verniero in the selection of applicants for two positions: (1) Elementary School Principal at Edith B. Wolford Elementary School; and (2) Director of Special Education for District # 20. Verniero requested as relief: money damages an investigation of the selection processes for both positions; a review of the School District's affirmative action plan to eliminate the discriminatory practices complained of; and costs and attorney's fees. Verniero also requested the court to retain jurisdiction over the action to assure full compliance with the court's orders. After a bench trial, the district court entered judgment for the School District. A recital of the pertinent facts will facilitate our review.

On March 27, 1978, the School District posted a vacancy notice for the elementary school principal position. The notice listed the following qualifications: "1. Three years experience in public schools. 2. Masters degree or equivalent is required. 3. A Type D Administrative Certificate is necessary." Def.Ex. L. Verniero was one of two female and thirty total applicants for the position. A six member screening committee, composed of four females and two males, selected nine or ten individuals to interview. Verniero was not selected for an interview. The Board of Education then interviewed four individuals and selected Mr. Dennis Sharon, a Michigan resident, as principal. Mr. Sharon did not possess the Type D Administrative Certificate.

The job vacancy notice posted for the position of Director of Special Education listed the following qualifications: "(1) Three years experience in area of Special Education. (2) Prefer Type D endorsement and/or Sped [Special Education] endorsement." Def.Ex. F. Verniero was one of five female and eleven total applicants for the position. One person later withdrew. A three man screening committee interviewed all the applicants and recommended Mr. Steve Pratt, District # 20's school psychologist, to the Board. The Board hired Mr. Pratt.

It is undisputed that Verniero was qualified for both positions.

The district court found that Verniero had made out a prima facie case of discrimination under the standards enunciated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court also found that the School District had carried the burden of going forward with the evidence and of articulating a non-discriminatory reason for Verniero's non-selection. The district court then found that since there was no suggestion of any improper reason utilized by any member of either screening committee or the Board regarding the hiring decisions, Verniero had not proven motive or intent to discriminate (i.e. the articulated reasons were not pretext); and, Verniero did not carry the ultimate burden of proving she was the victim of intentional discrimination. Judgment was rendered for the School District.

Verniero later moved for a new trial which was denied by the district court.

On appeal Verniero contends that the trial court erred in that it: (1) did not give due weight to its finding that Verniero had established a prima facie case; (2) did not make any findings as to whether the School Board's use of subjective criteria in its selection process was a convenient pretext for giving effect to sex bias; and (3) did not make any finding regarding the waiver of the Type D certificate for the male selected for the principal position. Verniero further contends that the trial court "abused its discretion in its conduct of the trial which was prejudicial to plaintiff." Appellant's Brief at p. 2.

Our standard of review is governed by the clearly erroneous rule. We agree with the district court that "[i]t is not the duty of a court nor is it within the expertise of the courts to attempt to decide whether the business judgment of the employer was right or wrong. The court is not a super personnel department. All that a court does is to exercise a very limited review of the employment practices of an employer to see if the practices are shown to be lawful...." R., Vol. III p. 9. Our sole function on appeal is to review the record to ascertain whether it supports the trial court's findings, which findings are not to be set aside unless they are clearly erroneous. Thornton v. Coffey, 618 F.2d 686 (10th Cir.1980). "We have held that findings are not to be determined clearly erroneous unless, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made." Id. at 690 (citation omitted).

A Title VII disparate treatment action for promotion discrimination proceeds in the following manner:

The plaintiff first has the burden of establishing a prima facie case of employment discrimination under the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the prima facie case is established, the defendant must articulate a reason, using admissible evidence, to explain why "the plaintiff was rejected, or someone else preferred, for a legitimate, nondiscriminatory reason." Texas Department of Community Affairs, 450 U.S. at 254, 101 S.Ct. at 1094. If such a reason is offered, in order to prevail the plaintiff must demonstrate that the defendant's articulated reason is a mere pretext for unlawful discrimination. Id. at 256, 101 S.Ct. at 1095. Throughout these stages, the overall burden of persuasion remains with the plaintiff. Id.

Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 340-41 (10th Cir.1982). The trial court found that Verniero had established a prima facie case under McDonnell Douglas, supra.

Verniero argues, however, that the trial court erred in "failing to give due weight to its finding that plaintiff established a prima facie case." Appellant's Brief at p. 12. We find this argument to be meritless. The trial court found that Verniero had established a prima facie case. The court then properly shifted the burden of production of evidence to the School District to articulate a legitimate, nondiscriminatory reason for Verniero's non-selection. R., Vol. III pp. 6-8. The trial court then found that the School District had articulated such reasons. Id. at p. 9.

Verniero argues that the reasons articulated by the School District for her non-selection were purely subjective, and that "[s]uch a high level of subjectivity in the decision making selection process subjects the ultimate decision to an intolerable occurrence of conscious or unconscious intent." Appellant's Brief at p. 14.

In a recent case we examined the issue of subjective qualifications and held that failure to meet an employer's subjective criteria could not defeat a plaintiff's prima facie case. Burrus v. United Telephone Co., 683 F.2d at 342. Such is not the case here. Verniero was concededly qualified for both positions. She established her prima facie case. She was rejected for both positions based on the subjective opinions of evaluators serving on the screening committees. Under these circumstances, Verniero is entitled " 'to the benefit of an inference of discrimination, which inference requires the defendant ... to come forward and articulate legitimate reasons for her non-selection.' " Burrus v. United Telephone Co., supra at p. 342 (quoting Bauer v. Bailar, 647 F.2d 1037 (10th Cir.1981)).

The School District, as the trial court found, did come forward and articulate reasons for Verniero's non-selection. With respect to the Elementary School Principal position, witnesses for the School District testified that her experience had been mostly in special education, R., Vol. II pp. 64, 112, and that "[m]any of the other candidates had a number of years--many years in some cases--experience similar to what we would expect to have at Wolford school." Id. at p. 64. In other words, other candidates were better qualified. One member of the screening committee also testified that she had some question about Verniero's ability to be flexible and to work with the faculty and the people in the community. Id. at p. 120, 121.

With respect to the Director of Special Education position, each member of that screening committee testified to the effect that he had doubts about Verniero's ability to get along with people. R., Vol. III pp. 52, 94, 106. Two members of that committee expressed particular concern about Verniero's ability to correct existing problems at the school, regarding the troubled relationship between the special education and the regular education programs. Id. at pp. 94, 107. One member testified that her answers to questions at the interview led him to believe that if Verniero were selected the problems would be perpetuated rather than solved. Id. at 107.

Subjective evaluations play a legitimate part in an employer's determination whether an employee has the ability to get along with others. This is a legitimate business reason for the non-selection of Verniero. This is particularly true in ...