Berger v. State Personnel Board

MESCHKE, Justice,

dissenting.

I respectfully dissent. The controlling opinions construe too narrowly both the Central Personnel System Act, NDCC ch. 54-44.3, and the Human Rights Act, NDCC ch. 14-02.4, disjointing rather than harmonizing them, disemboweling the legislated powers of the State Personnel Board, and forcing a discrimination claimant into a multiplicity of proceedings for complete relief.

The controlling opinions give no effect to the relevant statutory powers and implementing regulations that were unchallenged in this appeal. The State Personnel Board has “primary responsibility ... to foster and assure a system of personnel administration in the classified service of state government.” NDCC 54-44.3-07. In carrying out this function, the Board has several hearing powers. The Board is empowered both to “hold such hearings as are necessary to properly perform the duties, functions, and powers imposed on or vested in it by law” and to “[h]ear, consider, and determine appeals by nonprobationary employees in the classified service from agency grievance procedures ... related to ... discrimination.” NDCC 54-44.3-07(1), (3). To exercise its powers in different kinds of discrimination cases, the Board has combined its procedures into a single set of regulations for “Appeals of Discrimination.” NDAC 59.5-03-04.1 “An employee shall complete the employing agency’s internal grievance procedure prior to submitting an appeal to the board for an appeal hearing. Job applicants may appeal directly to the board.” NDAC 59.5-03-04-02(1). This case arises from a direct appeal by a job applicant who was discriminated against in hiring.

When first enacted in 1975, the Central Personnel System Act prohibited discrimination in hiring: “All appointments and promotions to positions in the state classified service must be made without regard to sex....” NDCC 54-44.3-01. “No discrimination may be exercised, threatened, *544or promised by any person in the employ of any division of the service ... against or in favor of any applicant ... because of sex_” NDCC 54-44.3-22. The Board and its director are empowered to “[establish general policies, rules, and regulations, subject to the approval of the board, which are binding on the agencies affected ...” to “provide for ... (e) [ejnsuring fair treatment and compliance with equal employment opportunity and nondiscrimination laws.” NDCC 54-44.3-12(1). Clearly, the Legislature intended to empower the Central Personnel Board, in addition to remedying discrimination in promotions, transfers and treatment of existing employees, to remedy discrimination in hiring practices and appointments to positions.

When the Human Rights Act was later enacted in 1983, it particularized discriminatory practices. It also applied to all state employees except elected officials and their policy-making employees or immediate advisors: “Provided, ‘employee’ does include a person subject to the civil service or merit system or civil service laws of the state government_” NDCC 14-02.4-02(4). “ ‘Employer’ means a person within the state who employs one or more employees for more than one quarter of the year....” NDCC 14-02.4-02(5). NDCC 14-02.4-02(11) defines “person” to include “the state and a political subdivision and agency thereof.”

The Human Rights Act declares: “It is a discriminatory practice for an employer to fail or refuse to hire a person ... because of ... sex....” NDCC 14-02.4-03. The Act defines the remedies needed for relief from discriminatory practices. NDCC 14-02.4-20. See NDCC 1-01-09 (definition of word or phrase in any statute applies to same word or phrase in subsequent statute, unless contrary intention plainly appears); NDCC 1-02-03 (words and phrases defined by statute must be construed according to that definition). Included in NDCC 14-02.4-20 are the remedies of backpay and reasonable attorney fees, both appropriate and needed to remedy hiring discrimination.

These complementary provisions in NDCC ch. 14-02.4 give meaning to the State Personnel Board’s powers. For discrimination against both applicants and personnel, the Board has “primary responsibility.” Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 130 (N.D.1987) and 2 Am.Jur2d Administrative Law § 795 (1962), teach that primary jurisdiction in an agency precludes resort to the courts until the matter has been decided by the responsible administrative agency.

Title VII on Civil Rights, which includes sex discrimination, defers to state-agency jurisdiction “[i]n the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice....” 42 U.S.C. § 2000e-5(c). “Because Congress has cast the Title VII plaintiff in the role of ‘a private attorney general,’ vindicating a policy ‘of the highest priority,’ a prevailing plaintiff ‘ordinarily is to be awarded attorney’s fees in all but special circumstances.’ ” New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63, 100 S.Ct. 2024, 2030, 64 L.Ed.2d 723 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)). See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). New York Gaslight held that Title VII authorizes a federal-court action solely to recover attorney fees for work done by the prevailing complainant in state-administrative proceedings to which the prevailing complainant is referred by Title VII. In view of this supreme law of the land, the controlling opinions’ evisceration of the Board’s power to enforce the prohibition of discrimination in state employee-hiring practices is a futile, inefficient, and frustrating interpretation that ignores “a policy that Congress considered of the highest priority,” Piggie Park Enterprises, 390 U.S. at 402, 88 S.Ct. at 966, and that the Legislature implemented in the State Personnel Board chapter.

*545When several statutes relate to the same subject, every effort should be made to give meaningful effect to each, without rendering one or the other useless. Hospital Services, Inc. v. Brackey, 283 N.W.2d 174, 177 (N.D.1979). With the modern trend favoring alternative dispute resolution, see Little v. Tracy, 497 N.W.2d 700 (N.D.1993), it makes no sense to relegate applicants for state personnel positions to the courts for piecemeal relief from hiring discrimination, when the Board is charged with “primary responsibility” to enforce discrimination laws in state employment practices.

We construe statutes on the same subject together, in order to harmonize them. NDCC 1-02-07; Newland v. Job Service North Dakota, 460 N.W.2d 118 (N.D.1990). To ascertain legislative intent, we look to all statutes on the same subject and harmonize them where possible. In Interest of B.L., 301 N.W.2d 387, 390 (N.D.1981). See also Strecker v. Grand Forks County Soc. Serv. Bd., 640 F.2d 96 (8th Cir.1980), panel majority opinion adopted on reh'g en banc (1981) (Title VII on Civil Rights and the Equal Pay Act must be construed together and in harmony). The entire statute is intended to be effective, and compliance with the constitution and laws of the United States is intended. NDCC 1-02-38. We should apply these basic principles of statutory interpretation here. Therefore, I would hold that attorney fees are authorized and available to a prevailing applicant in a sex-discrimination claim decided by the State Personnel Board.

I would remand with directions that the district court remand to the Board for a decision on awarding attorney fees in this case. Of course, under New York Gaslight, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723, Berger will have recourse to the federal courts to recover her attorney fees for the work done in these proceedings. Unfortunately, that course will only compound the costs to the state agency responsible here.

. NDAC 59.5-03-04-01 says:

Scope of chapter. This chapter applies to job applicants for positions in the classified service and to classified employees regardless of status who want to appeal discrimination in employment because of sex, race, color, national origin, age, handicapped condition, or religious or political opinions or affiliations. Additionally, this chapter applies to job applicants and classified employees regardless of status in the merit system who want to appeal discrimination on any nonmerit factor.