Strand v. Petersburg Public Schools

RABINOWITZ, Justice,

dissenting, joined by BURKE, Chief Justice.

I dissent from the court’s decision to uphold the Commission’s finding that Strand was the victim of discrimination. In my view, the Commission’s critical findings are not supported by substantial evidence. Thus, I would affirm the superior court’s order remanding the case to the Commission with directions to enter an order dismissing the complaint. My reasons are as follows.

After McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which announced the prima facie approach to discrimination suits, the Supreme Court was faced with a series of cases in which it was asked to decide what kind of, and how much, evidence an employer must adduce in order to prevail in a case in which an aggrieved woman or minority has presented a prima facie case of discrimination. In. Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), the Court issued the first of its explanations of the task of an employer faced with a prima facie case of discrimination:

We think the Court of Appeals went awry, however, in apparently equating a prima facie showing under McDonnell Douglas with an ultimate finding of fact as to discriminatory refusal to hire under Title VII; the two are quite different *1224and that difference has a direct bearing on the proper resolution of this case ....
When the prima facie case is understood in light of the opinion in McDonnell Douglas, it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race.

Id. at 576-77, 98 S.Ct. at 2949-50, 57 L.Ed.2d at 967-68. Five months later, in Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam), the Supreme Court went on to explain what it meant in Furnco when it stated that the employer must “prove” that it based its employment decision on a legitimate consideration. The Supreme Court said that it did not mean “prove”; rather, that “we think that there is a significant distinction between merely ‘articulating] some legitimate, nondiscriminatory reason’ and ‘proving] the absence of discriminatory motive.’ By reaffirming and emphasizing the McDonnell Douglas analysis in Furnco ... we made it clear that the former will suffice to meet the employee’s prima facie case of discrimination.” Id. at 25, 99 S.Ct. at 295, 58 L.Ed.2d at 219. The Supreme Court expressly rejected the proposition that an employer must disprove discriminatory intent in order to prevail in the face of a prima facie case of discrimination.

Finally, in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), a unanimous Supreme Court explained that an employer not only need not disprove discriminatory motive but also need not prove that its articulated reason for rejecting the minority or female applicant actually existed. The holding in Burdine is that an employer need not prove by even a preponderance of the evidence the existence of a legitimate reason for rejecting the disappointed applicant; rather, it need only articulate a legitimate reason in order to overcome a prima facie case of discrimination.

The net result is that in a situation in which the employee has presented a prima facie case of discrimination and the employer has stated a reason for its hiring decision, and the stated reason has not been discredited, the employer wins. Under the Title VII test the prima facie case alone is not substantial evidence of discrimination if the employer has explained the basis for its decision and if that explanation has not been discredited. In my view of the record that is the status of the case at hand.1

The testimony of the four Board members — two women and two men — sets forth the reasons why Stockton rather than Strand was hired for the principal’s post. The reasons articulated by the Board members for their choice were legitimate, nondiscriminatory reasons for selecting Stockton, and there is no indication in the record that those stated reasons were fictitious or mere pretexts.2

*1225First, Board members testified that Stockton’s experience as a counselor3 made him a more desirable candidate than Strand for the principal’s position.4

Second, they explained that Strand had once acted in an unprofessional manner during negotiations with the Board and that they felt this kind of behavior was unsuitable in a person who aspired to the position of principal.

Third, Board members testified that although they were aware that Strand was an excellent teacher, the Board had once hired an accomplished teacher as an administrator and were disappointed with his performance. From this the Board concluded that many years’ experience as a teacher is not necessarily indicative of competence in an administrative role.5 In my view, each of these explanations is a legitimate, nondiscriminatory reason for selecting Stockton rather than Strand.

Additionally, I think it appropriate to address two arguments Strand has made concerning the Board’s alleged unequal consideration of her application. Strand argues first that the Board should have considered her leadership in professional organizations6 as providing administrative experience similar to that obtained by Stockton in his counseling jobs. Absent some indication that an employer’s assessment of the relative values of candidates’ backgrounds is merely a pretext, however, this court should not substitute its judgment for that of the employer, and should not permit the Commission to do so. I thus reject Strand’s argument — a subjective conclusion in itself — that the Board should have given greater weight to her participation in professional organizations.

Second, Strand argues that the Board’s failure to have an amount of information available about her which was comparable to that which it had about Stockton, and to have substantially similar information *1226available about each candidate, is evidence of the Board’s discriminatory motives.7 I note that each of the four Board members testified that he or she was personally acquainted with both Strand and Stockton, and was familiar with Strand’s and Stockton’s abilities.8 The record reflects that the Board members assumed that they had sufficient information available about both candidates to forego conducting formal interviews and requesting additional information from either Strand or Stockton. Although the Board’s hiring procedures were unduly haphazard for a position of such great responsibility, there is no evidence in the record that the hiring procedures were intended to, or did, slight Strand’s application.

I agree that statistical evidence can be relevant — and, sometimes, persuasive — in a discrimination case. Nevertheless, there simply is no statistical evidence of discrimination in this case.

The fact that the Petersburg School System had not hired a female principal is in my view of little significance. That fact alone says nothing about discriminatory practices. Without information regarding the number of applicants for a given position and about the gender composition of the applicant pool, it is meaningless to state that an employer’s past hiring decisions are evidence of discrimination. Obviously, if there were no qualified women in the applicant pool the fact that only men were hired indicates nothing about the employer’s preferences.

In addition, the record in this case refutes any claim based upon statistical evidence. When the Board advertised the vacancy in the principal’s post, it received fourteen applications, in addition to those of Strand and Stockton, in response. All but one of those applications were from men; the gender of the fourteenth applicant is not ascertainable. I have a great deal of difficulty concluding that an employer who rejects thirteen, perhaps fourteen, men and one woman has thereby demonstrated its intent to discriminate on the basis of gender.

In conclusion, review of the record has convinced me that the Board members articulated legitimate, nondiscriminatory reasons for their unanimous decision to hire Stockton rather than Strand. Each Board member recognized that Strand was an experienced, capable teacher; the record reveals that the Board considered Stockton’s experience as a counselor to be more suitable training for the principal’s post than was Strand’s teaching experience and her participation in professional organizations. *1227I need not agree with the Board s assessment of the relative values of Strand’s and Stockton’s varied experiences to conclude that the Board’s explanation of its hiring decision is sufficient to dispel the inference of discrimination raised by Strand’s prima facie case. There has been no showing that the reasons offered by the four Board members for selecting Stockton rather than Strand were pretextual or otherwise lacked credibility. Thus I agree with the superior court’s determination that the Commission’s finding of discrimination is not supported by substantial evidence.

. Admittedly, federal Title VII law is not conclusive in this case, but this court has already stated that it will apply Title VII standards in cases arising under Alaska’s antidiscrimination statute. Thus it seems to me that the complete Title VII test and not just selected portions of it should be applied.

. The final step in the Title VII analysis requires the person alleging discrimination to discredit the employer’s articulated reasons for the hiring decision. See Burdine, 450 U.S. at 255, 101 S.Ct. at 1094, 67 L.Ed.2d at 217. In this case the Commission never reached this step in the analysis.

Originally, the Commission concluded that Strand had not proven her claim, and ruled in favor of Petersburg Public Schools. On motion for reconsideration the Commission changed its mind and concluded that evidence of subjective hiring practices sufficed to establish a prima facie case of discrimination. In considering the Board’s rebuttal evidence, however, the Commission misconceived the nature of the task of an employer faced with a prima facie case of discrimination.

The Commission ruled that the Board had not rebutted Strand’s prima facie case “by even a preponderance of the evidence.” In support of this conclusion the Commission stated, in effect, that the Board had failed to explain why it applied subjective hiring criteria or neglected to give Strand’s application the same attention given Stockton’s. Under the Title VII test, however, the Board’s task was not to explain away the elements of Strand’s prima facie case *1225—i.e., subjective hiring criteria and lack of attention to Strand’s application — but rather to state a valid reason why it selected Stockton rather than Strand. That the Board did, and that is all the Title VII test requires the Board to do.

Perhaps the most telling evidence of the defects in the Commission’s reasoning is the Commission’s concluding statement that “the evidence established only that the hiring procedures were defective as applied to Strand.” Alaska law does not proscribe careless personnel practices; it proscribes discriminatory hiring. Although haphazard practices may be used as part of a prima facie case to raise an inference of discrimination, once an employer explains the basis for his decision it should not matter that its procedures were defective. In other words, once the employer demonstrates by articulating the bases of its decision that it was reached “on the merits” — and not on the basis of gender — the employer is entitled to prevail under the Title VII test. The fact that the employer’s hiring procedures were haphazard is not, in and of itself, a separate offense under Alaska’s antidiscrimination statute.

. At the time he was promoted to principal, Stockton was a high school counselor; he had previously worked as an elementary school counselor.

. See, e.g-, “[H]is ability to counsel and the results of his counseling ability to me, was a very important part;” Stockton’s counseling experience was “a very big plus;” “[W]e also felt that his counseling and his tact and his own personality in dealing with the people would be more important as a principal.” Although it is possible, of course, to say that the Board should not have given such great weight to Stockton’s positions as counselor, it seems to me that it is neither this court’s job, nor the Commission’s, to second-guess employers’ beliefs about the relative merits of candidates’ backgrounds. In any event, additional testimony in the record corroborates the Board’s belief that a position as counselor is considered in the profession to be an intermediate step between teacher and administrator. “[M]y experience with high school counselors is that it is practically the same as vice-principal.... I consider that part of my decision in this was that high school counselor is basically and [sic] administrative role.”

. Perhaps it was unfair of the Board to assume that its prior experience with a teacher in an administrative role meant that teachers do not necessarily make good administrators. However, Alaska law does not proscribe hiring decisions based upon erroneous generalizations or stereotypes which are not based on gender.

. Strand had been chairperson of the statewide Professional Teaching Practices Commission, president of the local teacher’s association, and a member of a teachers’ salary negotiating team.

. Failure to seek additional information to supplement a woman’s application may, in an appropriate case, tend to show that an employer did not give the application serious consideration. See Alaska USA Federal Credit Union v. Fridricksson, 642 P.2d 804, 808 (Alaska 1982). Such is not the case here.

Board members were supplied the complete files available on Strand and Stockton. Although the files did not contain equivalent information about each candidate — Strand’s file, unlike Stockton’s, contained uninformative medical reports, and Stockton’s file, unlike Strand’s, contained letters of recommendation submitted five years earlier by Ohio educators in support of Stockton’s application for a job in Petersburg — there is no indication in the record that the Board made unwarranted assumptions about either candidate because of lack of information.

Strand also points out that Stockton’s superi- or, the high school principal, took upon himself the task of speaking to Board members and recommending Stockton, but that the Board never inquired of Strand’s superior. Strand’s superior testified that had he been asked, he would have recommended her. Nonetheless, in light of the Board members’ assumption that they were familiar with Strand’s and Stockton’s qualifications, and their uniform testimony that they were aware that evaluations of Strand were excellent, I cannot say that the Board failed to compare fairly Strand’s assets with Stockton’s.

. Board member Enge testified that she and Strand were “old friends and close friends” and that her four children had been in Strand’s classes. Board member Norheim testified that she had known Strand and Stockton since they arrived in Petersburg. Board member Dean testified that he had known Strand since he came to Petersburg in 1961.. Board member Oines testified that he had known Strand for thirty years, and that both Strand and Stockton “were well known people in the community.” The Board members’ testimony also uniformly reflects that the members were aware that Strand was a capable, well-respected teacher.