Hoppe v. McDonald

SHEPARD, Justice.

This is an appeal from a judgment which denied claims of sex discrimination brought by plaintiff-appellant, Betty Hoppe, against her former employers, defendants-respondents. Hoppe asserted that while she was employed by the Department she was, on the basis of her sex, denied a promotion, and also that she did not receive pay equal to male co-employees, although her work was substantially equal in nature to male co-employees. Following trial, the district court held that Hoppe had failed to prove that she had been the victim of any unlawful discrimination. We affirm.

Hoppe was employed in the Twin Falls office of the Department from October 1, 1970, through December 13, 1973. She had no college education but had graduated from high school and had a significant amount of prior work experience. She was hired in the highest job classification for which she was qualified in view of her prior work experience, i.e. “Interviewer II”, in pay grade 7. It is not disputed that Hoppe was an outstanding employee and received excellent job performance evaluations. Although she received no promotions as such, she did receive several in-grade, or “step” pay increases, which were granted automatically upon an employee’s satisfactory job performance. As a result of those pay increases, her salary increased over the three-year period of her employment from $527 to $673 per month.

Hoppe was initially assigned the duties of “Selection and Referral Officer” and she worked in that capacity until January, 1972, when she became an “Employer Relations Representative”. In May, 1973, Hoppe was additionally assigned a portion of the duties of “Twin Falls Labor Market Analyst”. Prior to Hoppe’s employment, one Slotten had performed the duties of “Selection and Referral Officer”. Slotten’s actual job classification was that of “Employment Counselor”, and he was in pay grade 10. Hoppe replaced Slotten as “Selection and Referral Officer”. In January, 1972, Hoppe was replaced as “Selection and Referral Officer” by one Clark. Clark held a job title of “Employment Counselor” and was in pay grade 10. When Hoppe was assigned to the position of “Employer Relations Representative”, she replaced one Omlid, whose job title was “Employment Consultant II”, and was in pay grade 10.

*35During the summer of 1973, an opening was announced for the position of manager of the Department’s office in Jerome. Twelve applicants, including Hoppe, applied for the position. A promotional review board was convened and the applicants were rated. The top three rated applicants were certified to a selecting official, and the top rated applicant, a male, was appointed to the position. Hoppe was not rated among the top three applicants, nor was she the highest rated female applicant.

In the fall of 1973, Hoppe applied for a promotion to the classification of “Consultant I” in pay grade 8. That position was to be filled from a register of the individuals who met the minimum qualifications and who had passed an examination. Hoppe took and passed the exam, was approved for the promotion, would have received the promotion in February, 1974, but she resigned from the Department on December 13, 1973.

Thereafter Hoppe filed a complaint with the Idaho State Commission on Human Rights, alleging sex discrimination in the promotion and pay practices of the Department and also asserting that she had been constructively discharged. That Commission found that the practices and procedures of the Department’s promotional policies denied women equal opportunity with men, and concluded that the Department had discriminated against Hoppe, recommending, among other measures, that Hoppe be awarded back pay. The Department refused to conciliate and this action resulted. Upon motion for summary judgment, the district court held that it was bound by the findings of the Commission and granted judgment in favor of Hoppe. On appeal, this court held that the findings and recommendations of the Commission on Human Rights had no binding effect on the district court, and therefore reversed and remanded for further proceedings. Hoppe v. Nichols, 100 Idaho 133, 594 P.2d 643 (1979). On remand, a trial de novo was held by the district court, sitting with an advisory jury. The district court held that the Department had not discriminated against Hoppe on the basis of her sex and entered judgment in favor of the Department.

Hoppe first asserts that the district court erred in its utilization of an advisory jury. I.R.C.P. 39(c) provides:

“In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.”

Here the action was one triable of right by a jury and neither party demanded a jury trial. Hence Hoppe argues that the court was without authority to, on its own motion, try the case with an advisory jury.

Although neither party requested a jury trial or explicitly consented to the use of an advisory jury, neither party objected to the advisory jury. A litigant may not remain silent as to claimed error during a trial and later urge his objections thereto for the first time on appeal. Bradford v. Simpson, 97 Idaho 188, 541 P.2d 612 (1975). Ordinarily an objection not made at trial will not be considered on appeal, Kock v. Elkins, 71 Idaho 50, 225 P.2d 457 (1950), unless the objection raises a question of jurisdiction, Briggs v. Golden Valley Land & Cattle Co., 97 Idaho 427, 546 P.2d 382 (1976), or that the pleading fails to state a cause of action, Webster v. Potlatch Forests, 68 Idaho 1, 187 P.2d 527 (1947). The instant case falls into none of the exceptions to the rule. Nor is this a case in which the trial court committed “plain” or “fundamental” error so substantial as to result in injustice or to take from the appellant a right essential to her case. Johnson v. Elliott, 112 Ariz. 57, 537 P.2d 927 (1975); Heacock v. Town, 419 P.2d 622 (Alaska 1966); cf. State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971).

Hoppe asserts that the trial court erred in depending upon the advisory jury’s answers to the courts interrogatories, rather than making its own independent findings of fact, but this argument is not sup*36ported by the record. The trial court’s memorandum decision contains a detailed discussion of the jury’s answers to each interrogatory as well as the court’s own factual findings in regard to those interrogatories. While the court’s findings are largely in agreement with those of the advisory jury, there is some specific disagreement with the jury’s answers and it is thus clear that the trial court did not believe itself bound by the advisory jury’s findings and made its own independent findings of fact.

Hoppe next asserts that the trial court erred in its finding that Hoppe was not denied promotion to the position of manager of the Department’s Jerome office by reason of her sex. I.C. § 67-5909, upon which Hoppe’s claim is based, provides in pertinent part:

“Acts prohibited. It shall be a prohibited act to discriminate against a person because of, or on the basis of, race, color, religion, sex or national origin, in any of the following:
(1) For an employer to fail or refuse to hire, to discharge, or to otherwise discriminate against an individual with respect to compensation or the terms, conditions or privileges of employment...”

Federal case law under Title VII, 42 U.S.C. § 2000e-2(a), is instructive as to the necessary quantum of proof and the applicable standards for adjudication in sex discrimination cases. Bowles v. Keating, 100 Idaho 808, 606 P.2d 458 (1979).

It is held that a plaintiff alleging unlawful discrimination must prove by a preponderance of the evidence that she applied for an available position, for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here Hoppe presented a prima facie case creating the inference of sex discrimination, thus shifting to the Department the burden to “articulate some legitimate nondiscriminatory reason” for Hoppe’s rejection. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824. Burdine, supra, clarified the nature of the burden that thus shifts to the defendant:

“The burden that shifts to the defendant ... is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. [citation]. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” 450 U.S. at 254-55, 101 S.Ct. at 1094. (footnotes omitted).

Here the evidence of the Department, if believed by the trial court, rebutted the inference of discrimination raised by Hoppe’s prima facie case. The evidence of the Department indicated that Hoppe was not rated among the top three candidates for the job and that she was not even the top-rated female applicant. It also indicated that Hoppe was rejected because of her lack of qualifications relative to the other applicants; i.e., that Hoppe had no experience in the field of unemployment insurance, which was a major program administered by the Department and that she had no supervisory experience. On the other hand, the individual selected for the position had experience in all of the Department’s programs, ancHmcTexhibited superi- or performance in a supervisory position *37within the Department for nearly three years.

Thus the Department’s evidence could be viewed as articulating a legitimate nondiscriminatory reason for Hoppe’s rejection, and further, as tending to indicate that the person hired for the position was better qualified than was Hoppe. Such a showing exceeded that necessary to merely rebut Hoppe’s prima facie case. Burdine, supra. The burden of production then returned to Hoppe, merging with her ultimate burden of persuasion as set forth in Burdine, supra.

“The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, supra, 450 U.S. 256, 101 S.Ct. 1095.

Hoppe thus had and was given the opportunity to produce any additional evidence that the reasons proffered by the Department in its evidence for her rejection was merely pretextual. Hoppe offered no such evidence but chose to rest on the evidence she had already introduced, the inferences to be drawn therefrom, and her cross-examination of the Department’s witnesses. Thereafter the trial court found no “sex discrimination or, in fact, unlawful discrimination of any kind.”

A trial court’s findings of fact will not be reversed unless they are clearly erroneous or not supported by substantial and competent evidence. I.R.C.P. 52(a); Cougar Bay Co. Inc. v. Bristol, 100 Idaho 380, 597 P.2d 1070 (1979); Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627 (1973). Here substantial and competent evidence supports the trial court’s finding that the Jerome promotion was not denied to Hoppe on the basis of her sex and therefore those findings will not be disturbed.

Hoppe next asserts that because of her sex, she was denied pay equal to that of male employees, even though she and the male employees performed substantially equal work. She asserts that the trial court erred in its finding that her work was not equivalent in nature to the woik being performed by male employees in higher pay grades.

Both I.C. § 67-5909, and Title VII, 42 U.S.C. § 2000e — 2(a)(1), prohibit discrimination as to compensation on the basis of sex. Federal Courts when presented with equal pay claims asserted under Title VII have looked to decisions interpreting the Equal Pay Act, § 6(d) of the Fair Labor Standards Act, 29 U.S.C., § 206(d), for guidance. Gunther v. County of Washington, 602 F.2d 882 (9th Cir. 1979), aff’d on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); Hays v. Potlatch Forests, Inc., 465 F.2d 1081 (8th Cir. 1972). As to equal pay claims asserted under I.C. § 67-5909, this Court will also look to decisions under the Federal Equal Pay Act, supra.

A claimant has the burden of proving that she did not receive equal pay for equal work, but is not required to show that the jobs performed were identical. Gunther v. County of Washington, supra; Peltier v. City of Fargo, 533 F.2d 374 (8th Cir. 1976); Usery v. Allegheny County Institutions District, 544 F.2d 148 (3d Cir. 1976). Rather unlawful discrimination may be shown by proving that the skill, efforts and responsibility required in the performance of the jobs are substantially equal Gunther, supra; Usery v. Columbia University, 568 F.2d 953 (2d Cir. 1977); Ridgway v. United Hospitals-Miller Division, 563 F.2d 923 (8th Cir. 1977). In that determination, it is the actual job performance in content which is significant rather than job titles, classifications or descriptions. Katz v. School District of Clayton, Missouri, 557 F.2d 153 (8th Cir. 1977); Hodgson v. Miller Brewing Co., 457 F.2d 221 (7th Cir. 1972). It is the overall job, and not its individual segments, which must form the basis of comparison. Gunther, supra. We hold that *38the trial court’s findings of fact that Hoppe did not perform work equivalent in nature to work being performed by male employees in higher pay grades is supported by substantial and competent evidence and hence is not “clearly erroneous”. I.R.C.P. 52(a); Cougar Bay Co., Inc. v. Bristol, supra; Baker v. Ore-Ida Foods, Inc., supra.

Hoppe contends that during her period of employment with the Department she continually replaced males who were in higher pay grades than she was and that when she was assigned new duties, males in higher pay grades assumed her prior duties. When she began her employment in the Department’s Twin Falls office, Hoppe, in pay grade 7, replaced Roy Slotten who was in pay- grade 10, as “Selection and Referral Officer”. When Hoppe became an “Employer Relations Officer,” Brian Clark, also in pay grade 10, replaced her as “Selection and Referral Officer.” The record shows that Slotten and Clark were in the job classification of “Employment Counselor” and that their primary duties involved specialized counseling of individuals who sought to use the Department’s services. A counselor was at that time required to possess a bachelor’s degree and at least 30 graduate hours in counseling and guidance. Hoppe was in the “Interviewer II” job classification. As a “Selection and Referral Officer,” she interviewed applicants referred to her by counselors to select the priority the applicants had under the law and to refer them for training in various programs administered by the Department, but she did no counseling herself. The record also indicates that selection and referral duties were performed by individuals in pay grades 6 through 10. “Selection and Referral Officer” also was shown to be a working title, not a job classification. Though Hoppe may have assumed some of Slotten’s duties in regard to selection and referral, substantial evidence supported the finding that she did not perform functions which were substantially equal to those performed by Slotten. Similarly, though, Brian Clark assumed part of Hoppe’s selection and referral duties when Hoppe became “Employer Relations Representative,”. substantial evidence supported the finding that Clark’s primary duties were substantially different from Hoppe’s. Even though all three were at various times given the working title of “Selection and Referral Officer,” the duties performed by Hoppe differed significantly in terms of skill, effort and responsibility, from the duties performed by Slotten and Clark. Slotten and Clark were paid more than Hoppe because their primary duty was counseling which they performed in addition to their selection and referral duties.

When Hoppe became an “Employer Relations Representative,” she replaced Emil Omlid who was in pay grade 10 and who was in the job classification of “Employment Consultant II.” The record indicates that Omlid’s primary duty was as the “Veteran’s Employment Representative.” “Employer Relations Representative” was shown to be a working title, not a job classification, and the record also showed that employer relations duties were performed by individuals in pay grades 6 through 12. The purpose of the employer relations function was to encourage employers to use the Department’s services. Though Hoppe may have assumed a portion of Omlid’s duties, substantial evidence supported the finding that the primary function performed by Omlid was substantially different than that performed by Hoppe.

The duties of a Labor Market Analyst, a position in pay grade 8, included gathering data on the economy in a given geographic area, analyzing statistical data, producing a newsletter and preparation of statistical studies. A “Labor Market Analyst” was required to have a college degree in mathematics, including credits in statistics and economics. When the Twin Falls Analyst resigned, Hoppe was assigned the job of reading the local newspapers and clipping articles from them in order to keep current on the local labor situation. Part of this information was then included in the Twin Falls Labor Market Report. Before a new Analyst was hired in the Twin Falls office, “Labor Market Analysts” from Boise and Pocatello performed the technical duties normally performed by the Twin Falls Ana*39lyst. Though Hoppe may have assumed a portion of the duties normally performed by the Twin Falls Labor Market Analyst, the record supports the finding that she did not perform all of those duties and certainly not the primary duties of the Analyst.

We have considered Hoppe’s remaining assignments of error and find them to be without merit. The judgment of the district court is affirmed. Costs to respondents.

BAKES, C. J., and McFADDEN, J., concur. DONALDSON, J., sat but did not participate.