Scarborough v. Arnold

Bois, J.,

dissenting: I respectfully dissent. In my view, remand to the commission on theories of either failure to hire or failure to consider is unwarranted.

I would hold that the evidence did not and could not support a conclusion that the defendant refused to hire the plaintiff. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973), the Court noted that “ ‘Congress did not intend by Title VII ... to guarantee a job to every person regardless of qualifications . . . . [T]he act does not command that any person be hired simply because he was formerly the subject of discrimination .... Discriminatory preference for any group ... is precisely and only what Congress has proscribed.’ ”

The court would remand on the issue of failure to hire in order that the commission might decide whether the defendant’s stated *812reason for failure to hire the plaintiff was “bona fide or merely a pretext,” i.e., whether the defendant’s testimony that he preferred someone with grill experience was a fabrication. This seems an unlikely possibility at best, for the record shows that the position demanded considerable grill expertise and ordinarily an experienced prospective employee is preferable to an inexperienced one. In any event, the commission’s findings credited the defendant’s testimony, although the commission found that testimony damning. Indeed, the commission’s ultimate finding was:

Therefore, in light of the Respondent’s testimony, the Commission finds [the respondent] in violation of NHRS 354-A:8,1. (Emphasis added.)

Remanding to the commission on the issue of whether the defendant’s testimony was a pretext is thus an invitation to the commission to take a different factual view of the case.

The matter of wrongful failure to consider has not been addressed by the parties at any stage of the litigation. Both the plaintiff and the state, which argued in behalf of plaintiff, have proceeded before this court on a theory of wrongful failure to hire. The majority admits that the commission itself was proceeding on a theory of wrongful refusal to hire as indicated by the substantial size of the award. Prudential concerns as to the proper exercise of the judicial power ordinarily require that we not address issues which the parties themselves have failed to raise. Desmarais v. State Personnel Comm’n, 117 N.H. 582, 378 A.2d 1361 (1977); Bastianelli v. Toco International, 117 N.H. 549, 552, 375 A.2d 595, 597 (1977). I would relax this rule where, due to plain error, a party has been deprived of a directed verdict to which he or she would otherwise be entitled. Boucher v. Johnson, 117 N.H. 343, 346-347, 373 A.2d 349, 351-52 (1977) (Bois, J., dissenting). These circumstances are not present here, and in my view we should not go beyond those matters presented for review by plaintiff’s own counsel and counsel for the state. The wisdom of not addressing issues on which the court has not had the benefit of argument by counsel should be evident.

With all of plaintiff’s and defendant’s evidence before it, the commission limited itself to factual findings that the defendant had exhibited sexually discriminatory attitudes. I would take these findings as the limit of the commission’s discovery of “wrongful” conduct. This falls short of the requirement that he in fact dis*813criminated against plaintiff. Since the findings do not support a violation of RSA 354-A:8 I, I would vacate the commission’s order.

Grimes, J.: I concur in this dissent.