Bowles v. Keating

606 P.2d 458 BOWLES, Plaintiff-Appellant,

Donna

Marshal T. KEATING and Moscow

Public School District No.

Defendants-Respondents.

No. 12524.

Supreme Court of Idaho.

Sept. 11, 1979.

Rehearing Denied Feb. 1980.

810 Bowles, including Mrs. applicants,

Ninе response to that an- applications filed nouncement. qualifications

Bowles’ educational Degree in position include a Bachelor’s English Education with minor in Business Moscow, Bowles, plaintiff- Allen for V. Degree in Adminis- and a Master’s School appellant. held an Idaho tration. She also State Cer- Gale, Moscow, Cope R. for defendants-re- for Administration. terms of tificate spondents. spent years she had seven as a experience subjects, such as teacher of business short- DONALDSON, Justice. Chief hand, law. also typing and business She high years in a school of taught had three Plaintiff-appellant, Donna Bowles Pierce, Idaho, then in Ben- 150 students in (Bowles), brought a claim for relief in dis- Washington, in a school of 500 to City, ton alleged that trict court in which she high after that in a school 700 students and Keat- defendants-respondents, Marshal T. Deary, 150 students approximately Moscow Public ing, Superintendent, and the winters, years two in the Idaho.- For district), (school refused District 281 School taught education classes had adult Bowles position рrincipal for a vice employment her typing. and in shorthand in violation sex discrimination result of trial, trial Following 67-5909. I.C. that there § at trial disclosed The evidence district did positions court found that the school in Mos- four administrative were apparent “her lack system hire Bowles because of in existence secondary school cow’s her failure to ability application of administrative and for Bowles filed her at the time others,” was not that Bowles At the time of principal position. relate well to vice job, positions. for the and applicant women held those qualified most trial no apply woman to for rejected all nine the first district Bowles was the school positions; al- hired a and instead one of the administrative applicants official trial, one other wom- High the time of though, Junior at Moscow teacher from the position. Defendant applied for From an had position. principal for the vice School Bowles recommend either Keating did not that the concluded findings thе court these position. applicant for a subsequent un- or the was not hiring process school district’s reasonable, discrimi- school district that the that defend- also indicated The evidence applicants but against all nine nated Swartz, then the John Keating and a ant sex based on was not such discrimination School, High screened Moscow principal reasons for justifiable there were and that and inter- submitted applications the nine Bowles. to hire school district to refuse applicants, nine to six of the four viewed re- appeal. We brought Bowles then Those interviews Bowles. including Mrs. trial. for a new verse and remand in- nature. Neither unstructured were any standardized formulated largely uncon- terviewer case are

The facts of this Nor the interviews. questions for written tested, which and it is the conclusions ed Idaho Wash- States or Constitution. See be computerized unfamiliar with scheduling Davis, 229, 2040, ington v. 426 96 S.Ct. U.S. grading. and He also felt that the fact that (1976). 48 L.Ed.2d 597 training Bowles’ was primarily in busi- might ness handicap super- field be a in provides: her Idahо Code 67—5909 § vising others in other academic areas. Fi- prohibited. “Acts shall be prohibited It a nally, Keating, on based information from against person act to a discriminate be- previous employers, believed that Bowles race, of, of, color, cause or on a basis had difficulty relating in to in others religion, origin, any sex or in of national area of human relation skills. Swartz testi- following: fied that impressions he formulated his of (1) For an employer to fail or refuse to primarily Bowles from the interview. It hire, discharge, to or to otherwise dis- opinion his that she was weak in the criminate an individual with re- area working discipline of with problems, as spect terms, compensation to or the con- well as in the area supervision of privileges employment ditions or of of supervi- instruction teachers. A former sor of Bowles testified that while she thought good Bowles was a teacher and provision clearly legis- This indicates the

despite fact that she had seen Bowles lative prohibit intent to discrimination in operate supervisory in capacity occa- employment practices Idaho basis on the sionally, she did not think Bowles would of sex. Trailer Idaho Coach Association v. good make a administrator. Brown, 910, (1974). 95 Idaho 523 P.2d 42 respect parallel I.C. 67-5909 is a state §

Based on the above evidence the trial Rights statute to Title VII of the Civil Act court for the appeal, held defendant. On However, of had 1964. this Court has not Bowles asserts that the trial court did not quan- adhere necessary correct occasion to determine the order and of allocation trial; proof tum proof applicable of standards the evidence does not support findings adjudication statutorily pro- of of and conclusions of the claims trial relating justifiable court of reasons scribed the basis sex. discrimination on trial, successfully completed training judge 2. At the trial commented defend- “He had Keating jet appeared flight pilot ant that it to him that Keat- with States Air Force the United ing experience given had intended to hire the individ- and I good had him a uncertified felt thаt along. training. judge leadership good ual all deal The trial obser- deal of A based this partially Keating experience supervision vation fact of had of others. Good signed reviewing training responsibil- a statement after nine deal in administrative applications very position official no certi- to the effect that ities that would be similar to a person position fied was available for the even personally I felt that school administration. though Keating background strong plus Mrs. Bowles was certified. de- in his that was a factor any considering nied such intention. He then noted this position for.” we were his, qualifications individual’s ing’s which in Keat- mind, qualified better him as an adminis- trator Mrs. than Bowles: 812 courts, hand,

Many guided federal on the and are quantum proof other requirements proof have determined in' promulgated standards discrimina- adjudication standards for under Title VII. arising tion cases under Title VII. Further, the state courts which have had analysis, a Title VII once a Under occasion to construe their discrimination produc thе burden of has carried statutes have done so on the basis of the facts, ing certain evidence as to certain quantum proof promulgat- and standards plaintiff’s presumptions arise in that favor. ed dealing alleged the federal cases with proving employer’s Without an intent Title VII sex discrimination violations. See discriminate, plaintiff may a discrimination Peper v. Princeton University Board under make a for relief either the claim 15, Trustees, N.J.Super. 151 A.2d 535 376 theory “disparate treatment” (1977); Corp. Electric v. General Common- Green, 792, Douglas Corp. v. U.S. wealth, 292, (1976); 469 Pa. 365 A.2d 649 (1973), 1817, 36 L.Ed.2d Co., Ellingson Spokane Mortgage v. “disparate impact” theory Griggs 48, P.2d 389 Wash.App. (1978). Four Duke 91 S.Ct. Power adopted expressly states have the federal (1971). generally B. L.Ed.2d 158 quantum and standards in sex dis- Grossman, Employment Dis & P. Schlei Employ- crimination cases. See State Fair theory 1—12 Either crimination Law Hohe, Ill.App.3d Practices v. ment may particular be set facts. applied to a (1977); 11 Ill.Dec. 368 N.E.2d 709 of Teamsters v. International Brotherhood ‍‌‌‌‌​‌‌‌‌‌​‌‌​‌​‌‌​​​‌​​‌​‌​​‌​‌​‌​‌‌‌​​‌​‌‌​‌‌‌‍College Wheelock Massachusetts Com- 324, 1843, Stаtes, 431 97 S.Ct. United U.S. Discrimination, against mission 371 Mass. In this case Bowles (1977). 52 L.Ed.2d 396 Jones, 130, (1976); N.E.2d 309 v. 355 Danz has utilize both theories. attempted to (Minn.1978); 263 Scarborough N.W.2d 395 Arnold, (N.H.1977). v. prima 379 A.2d 790 To a facie case of establish illegal “disparate under the discrimination dealing and state courts Federal impact” prove need theory, a recognized with discrimination cases have practices employer’s policies that an “proof that of unlawful rare discrimination intent, are on their face and which neutral ly by can established direct be evidence and against in effect a nevertheless discriminate employer’s seemingly arbitrary that an or Brother particular group. International pretextual explanation particular for a hir States, supra; hood of v. United Teamsters ing judgment permitted not be to should Co., supra. There Griggs v. Power Duke unlawfully which is in justify conduct fact after, an must shoulder the bur employer discriminatory.” College Wheelock v. Mas necessity for use den to show a business the sachusetts Commission Discrimina challenged. policies рractices the of Thus, tion, while supra 355 N.E.2d at 314. Co., supra. Griggs v. Duke Power acknowledge we that the ultimate burden prima facie case of To a on the issue discrimination establish persuasion “disparate the treat under complainant, with the Board discrimination remains (1) show that plaintiff must theory, v. ment” a College Trustees of Keene State Swee class, (2) belongs that she (1st 1978), accept protected she to a ney, F.2d 169 Cir. we 569 job for a for qualified complainant may prove applied the a and was principle that seeking applicants, employer which the was prima a unlawful discrimination case facie qualifications, she employer’s (3) despite to her proving an intent without following rejec her (4) discriminate, shifting rejected, thereby the burden of tion, open remained give position producing employer evidence to the to applicants seek from for its continued explanation lawful treatment qualifications.3 persons complainant’s complainant. We therefore аdhere Green, supra, Douglas Corp. suggestion v. McDonnell racial 3. been some While there has VII, order, nature, Title is proof pre- case under and burden discrimination cases, inapplicable Supreme to sex discrimination scribed the United States Court

813 Green, Douglas McDonnell v. Philadelphia Equality v. supra; Peters Educational Co., Dallas, v. (5th Jefferson City Chemical 516 F.2d 447 v. League, supra; Robinson 1975). Cir. point, At this Railway burden shifts supra; Hester v. Southern legiti- “to articulate some generally, (5th F.2d 1374 See mate nondiscriminatory reason for the em- Discrimi- Employment Note VII and Title ployee’s rejection.” Douglas Jobs, McDonnell “Upper nation in Level” Colum.L. Green, supra 802, U.S. 93 S.Ct. at Note, Dis- (1973); Employment Rev. 1614 1824. and Preferences Un- crimination: Statistics VII, (1973). der Title 59 Va.L.Rev. In attempting her establish Here, did not make a that Bowles we hold “disparate impact” theory, Bowles relied “disparate prima upon based facie case upon employment statistics from drawn impact” theory. Moscow District. signifi School Proof of cant statistical disparity may be used to she established a asserts that Bowles also prima create a case facie of discrimination. prima of discrimination under facie case See, g., Way Freight, e. Jones v. Lee Motor “disparate theory. treatment” Inc., 1970), 431 F.2d 245 cert. Green, Douglas supra. agree We denied, U.S. prima case Bowles did make out a facie (1971). L.Ed.2d 237 generally, B. Schlei disposi- under This is not those standards. Grossman, & P. Employment Discrimination case, tive of the however. When a Law 1147—96 Bowles asserts case, prima bur- establishes such facie since no woman has been hired for second to the producing den of evidence then shifts ary positions administrative in the Moscow legitimate non- employer to articulate some District, School such a statistical imba discriminatory applicant’s reason re- lance within the group hired the employ jection. Supreme States As United er and is sufficient to create a recently Court stated in Furnco Const. disagree. case. We might Such conclusion Waters, Corp. v. 98 S.Ct. аppropriately be drawn if the statistical 2949-2950, (1978): 57 L.Ed.2d 957 base relied larger, on were but here the “A facie case under McDonnell positions small number of (4), in the district Douglas an inference of discrimina- raises coupled with the small numbers of female acts, tion only presume because we these applicants (2), precludes the inference that unexplained, likely if are otherwise more the of lack female is attrib administrators than not based on the of consideration discrimination, utable to and not chance. impermissible factors. See International Brotherhood Team of States, sters v. United supra; Mayor of “When case the facie is understood

Philadelphia v. Equality Educational light opinion the 605, McDonnell League, 1323, 415 94 U.S. S.Ct. 39 apparent is Douglas, it the burden (1974); L.Ed.2d 630 City Robinson v. employer merely which Dallas, (5th shifts to the is 1975). 514 F.2d 1271 Cir. See Note, proving employ- that of based that he his generally, Employment Discrimina ment on legitimate tion: decision considera- Statistics and Preferences Under Title VII, tion, illegitimate and not an as 59 Va.L.Rev. 463 one such We note a laсk of indicating dispel evidence in record race. To the adverse in- ... percentage qualified ference un- secondary showing adminis from facie trators who assumptions are women. As der Douglas, employer McDonnell may be legitimate drawn in the absence of need non- which such ‘articulate some evidence, see discriminatory International Brotherhood employee’s reason for the ” States, Teamsters v. supra; Mayor United rejection.’ Supreme applicable United States Court in L. Edwin Wie- to sex See discrimination cases.

gand Jurinko, 970, 293, Co., Inc., v.Co. 414 U.S. S.Ct. 94 ‍‌‌‌‌​‌‌‌‌‌​‌‌​‌​‌‌​​​‌​​‌​‌​​‌​‌​‌​‌‌‌​​‌​‌‌​‌‌‌‍also v. Martin F.2d Jacobs Sweets 550 (1973), (6th 1977). 38 L.Ed.2d 214 has indicated 364 Cir. proof requirements Douglas in McDonnell are Hence in presenting legitimate the instant case the burden of tion nondiscrimina- decision, producing evidence which shifted to the tory employment reasons for an school proving district was that of show produce that the must credible evidence to decision not to hire in fact the Bowles was based on that the reasons advanced were legitimate v. Mobil Oil considera- real reasons. See Garrett 892, (8th 1976); tions. It is the Corp., nature of the burden F.2d Cir. which 895-896 shifts to the Corp., defendant in this case 522 F.2d and the Rich v. Martin Marietta proof required (10th 1975); once the v. Jefferson burden does shift Cir. Peters Co., Compton which causes us to & supra; reverse the decision of Holthaus Chem. (8th Sons, Inc., the district court 653-654 and remand this case for a 514 F.2d produce employer new trial. If the does evidence, re- he has failed to such credible abstract, shifting In the the burden case. The plaintiff’s prima but producing employer may evidence to the Supreme stated it this Massachusetts Court where, here, be no burden at all way: subjective employer utilizes and unstruc given by the reason “[I]f employment tured to make an standards its action and it is the real reason for clearly decision. The record before us indi the em- nondiscriminatory one . . . that the based deci cates school district its of stat- ployer obligation has fulfilled its subjective sion not to hire Bowles on ing producing support for a reаson and unstructured standards. Bowles asserts reason, pri- rebutting thus stated easily manipu that such standards can be ma facie case.” disguise lated to discrimination. We cer College Wheelock Com- tainly dispute validity do not of this v. Massachusetts Discrimination, supra, 355 mission assertion. But it is also true that decisions pro- If does N.E.2d at 315. hiring promotion upper jobs level evidence, the bur- duce such credible then may necessity involve assessments of to the producing den evidence shifts back intangibles, as such abstractions and leader employer’s rea- to show ship, personality, ability to relate to others were in fact rejecting sons for difficult, supervisory ability, which are Corp. v. pretext. Douglas impossible, if not of realistic measurement Green, supra. objective technique Rogers alone. Paper International 510 F.2d 1340 indicates review of the record Our 1975), and remanded on anoth vacated presented the school district that while issue, er rejecting applica Bowles’ reasons for their (1975), remand, opinion L.Ed.2d 29 and ina ability tion—lack of administrative Note, (1975); Title VII and Em F.2d others—they failed well with bility to relate ployment “Upper Discrimination in Level” that suggest to present to credible evidence Jobs, (1973). We note 73 Colum.L.Rev. 1613 more than con anything were those reasons subjective hiring procedures are not that venient reasons.4 per Rogers VII. se violative of Title re- record with in the only The evidence Co., Hester v. Paper supra; International inability relate well to Bowles’ to spect to generally, Railway supra; see Southern Keat- testimony of defendant others is the Grossman, Employment P. Dis B. & Schlei based on testimony that ing. He offered crimination Law 166-81 em- he had from other which information might “she have that ployers, he believed opinion

But we are of the that human relation area of where, case, difficulty in the employer an utilizes this testimony in is other While there subjective unstructured standards skills.” and qualifications concerning Bowles’ the hiring process, employer, that addi- record the rejecting mere regard, hеr were District’s reasons for we do 4. our conclusion in this Given pretext. question whether Bowles reach the showing presented that the School or of qualifications, opens lack no 67-5909 the of this state’s there other I.C. doors § is. testimony ability on bearing specifically her an alleges to that plaintiff courts a who to relate well people. to other on employer against discriminated her/him race, color, religion, sex the basis of As it relates to Bowles’ administrative showing a on origin national with minimum abilities, the that she a record indicates had Douglas, part. her Under his or significant more background administrative (1) plaintiff a need show such that: person than the who was hired. The trial class, (2) belongs protected to a person that judge himself so stated at light trial. qualified and was for a person applied that this, finding the the that fact Bowles job seeking for which was was not the qualified applicant most applicants, (3) despite person’s that job a meaningless finding. becomes rejected, (4) qualifications, аnd she/he We turn now to a discussion of the rejection, lastly, following her/his trial court’s conclusion of law that all since position open the employer remained and applicants nine (eight woman) men one applicants persons from continued to seek were against, discriminated Bowles could qualifications. a her/his Once discrimi- not seek relief based on a claim of sex showing, nation has made this problem discrimination. The is that any showing employer’s in- without an logic effectively forces the to show discriminate, tent to has satisfied she/he initially, to contrary holding of McDon proof. point her/his burden of At Douglas Fumco, nell the employer defendant-employer burden shifts to the intended to against discriminate her on the prove by rejected it credible evidence that basis of sex. erroneously The trial judge application plaintiff’s legitimate considered such showing a threshold to be If employ- reasons. essential in order for Bowles make out a legitimate er’s reasons are nondiscriminato- claim for relief. At trial he stated: ry they ones if are the real reasons for seems me there be must “[I]t actions, employer’s has something that shows discrimination di- obligation stating fulfilled its reasons rected your toward a client because she’s reasons, support and producing for those female. And I don’t find that in the rebutting thus facie discrimination record. question no she There’s was dis- case. against criminated but it seems to me she was an outsider. And I proper don’t think focus in this case is on the you’ve anything just shown because ability she to rebut Mrs. Bowles’ defendants’ was a woman.” case, prima facie discrimination not on Mrs. ability produce Bowles’ evidence of The fact of the matter is that because school district’s intent to discriminate Bowles claims to have been discriminated If the basis sex. defendants success- against sex, on the basis of under I.C. case, fully practical rebut her effect 67-5909, she § has claim for relief. The such a rebuttal would be that there was no rejection school district’s of the other eight sex discrimination on basis of as a mat- applicants, male, all of whom were irrele- tér Conversely, of law. if the defendants vant to her establishing facie dis- burden, claim; fail in their the effect would be to crimination although, may be rele- they conclude that discriminated vant to school attempt district’s to re- the basis sex in but the of violation Bowles’ facie case. as of law. I.C. 67-5909 a matter § of Where there is claim job a discrimination by foregoing a member the As is evident from the discus- minority by Code, chapter covered 59 of sion the and the law be the Idaho record to minority deprived member is applied, not this with a of his action tried certain confusion, her cause of action though person even a as to amount to the standards not a part of that minority rejected is also be guide litigation, used to the the burden Quite job. same to the contrary, from the required pri- establish to a ma facie case upon plurali- the burden As the by the “harmless error.” noted transcript defendants to ty, rebut that case. Given the it is evident from the trial confusion at resulting trial and the much attended absence briefs that confusion events, of a record unexpected which would indicate whether the trial —not an turn judge the given guidelines trial the trial found for defendants lack of for because prove Bowles had no could the school court follow. If Mrs. Bowles to district intended discriminate to her establish the defendant opportunity to on the basis of refusing sex and whether the school for employer’s articulated reasons district did in ap- fact rebut Bowles’ fa- pretextual, to hire her were in fact showing, case, cie a pears presents new trial is in order. to be the this alone reversing for justify reason to sufficient We have taken the time to set out the E.g., infirmity. second free of trial proof required nature of the and the stan- Green, Douglas Corp. v. dards to be utilized in determining the va- 1817, (1973). L.Ed.2d lidity of discrimination claim under I.C. Moreover, hold that the there is reason to 67—5909in because it represents this case § findings of conclusions trial court’s fact and significant job оne of the first state dis- sufficiently confusing of law to warrant are crimination cases to reach Idaho courts. clarification. A trial court’s reversal for many We have no doubt that will follow. ought be to assist the findings to such as We have no desire to deal with these future under- appellate reaching court in a clear cases in an ad manner. Nor hoc will this standing of the basis for the decision. complacent allowing litigants Court be with Schuler, Perry Plumbing v. 96 Idaho Co. cases for appeal such build a record to (1975); Dawson El- 531 P.2d the same ad hoc manner. (1962). dredge, 372 P.2d 84 Idaho is This case and remanded for a reversed has since judge The who tried this cause new trial in with opinion. accordance this appropri- private practice. It is returned to 40(a). We award to pursuant costs I.A.R. therefore, remand the reversing, ate to entirely cause an new trial. See Walter for McFADDEN, J., concurs. Forests, Inc., 94 Idaho Potlatch BISTLINE, Justice, specially concurring. P.2d 1039 agree I that we should utilize federal case adopting a If advocates plurality law under Title fashion stan- VII to require to standard of which, governing leg- further dards absent exclusion prove his “real” reason to islation, brought will reasons, to actions in this apply main- as the dissent of all other This state under I.C. 67-5909. serves tains, however, with that disagree § I must relieve our courts of the district burden states plurality standard. The area, legiti- new delicate forging law this presenting in addition to “employer, appears legislative inten- also further for an em- mate reasons expressed tion as in I.C. 67-5901: decision, credible produce § must ployment advanced reasons (1) to show that the this general purposes “The act are: This state- real reasons.” of were in fact the To for with the state provide execution to five reference ment followed in the federal policies embodied Civil cases. Act and to make Rights of 1965 [sic] those states which uniform laws of out, are at points there As the dissent ” this .

enact act. . . set standard ways to read that least two way is to first plurality. forth agree I also that we must remand more than do trial, employer must a new I am to hold that the case for for unable decision, his a reason agree analysis merely con- state completely with support in the has no reason dissenting opinion. That anal- where such in the tained standard apparently is the This procedure followed evidence. ysis fails reduce * possible adopt. A second the would category the to the dissent by here trial court person a he failed to hire reading to know whether require employer is to that the prove exonerate his “real” reasons to the exclusion of would not reasons which ” reasons, v. First possible including quoting Hodgson all other those of Id. at him.’ Association, a discriminatory nature. a close ex- Savings After & Loan Federal plurali- the The court by amination of the cases cited (5th F.2d Cir. ty, I agree stringent legit- cannot that this more had established that defendant stated reasons, standard was utilized in those cases or that non-discriminatory that the imate adopted it should bе here. I also do not been because plaintiff had not transferred believe was the that this standard that the the problems and history had a of back she plurality adopt. intended to weight required heavy lift- job would have it would ing. statement that The court’s In the first case cited by plurality, the explanation” “look for an to the defendant Corp., (8th Garrett Oil v. Mobil 531 F.2d burden of to a shift in the does not amount 1976), Cir. court merely the held that there going opposed to the burden proof, support was substantial evidence to forward. findings judge’s plaintiff that was dis- charged by for the reasons stated defendant Compton The in Holthaus v. & defendant and that pretext. those reasons not were 1975), Sons, Inc., (8th Cir. F.2d 651 That court stated that once a facie “legitimate, nondis- failed to establish case is plaintiff, made out the “bur- rejec- criminatory employee’s reason den then shifts defendant show a valid tion,” not because court but it was action, reason for is then required prove reason. him his real opportunity afforded an to show that de- reason Rather he failed to show that fendant’s pre- asserted reason mere is all credible. Defendant’s advanced was at text.” Id. at 895. This statement that self-serving only consisted of evidence defendant must “show a reason” valid can piling was plaintiff’s work statements that in no way be read to require prove him to up employees take and that other couldn’t his “real” reason to the exclusion all Furthermore, that it was shown care it. others. temporary past had used in defendant absentees,

The court in defendant help Rich v. Marietta to fill in for but Martin Corp., refused to do so in this case. (10th 1975), F.2d course, stated “[djefendant may, The burden of surrounding confusion rebut this prima showing by produc- perhaps here was best illustrated ing objective ‍‌‌‌‌​‌‌‌‌‌​‌‌​‌​‌‌​​​‌​​‌​‌​​‌​‌​‌​‌‌‌​​‌​‌‌​‌‌‌‍evidence of business reasons plurality opinion, in the the final case cited or promote its necessity for failure to Com- College Wheelock Massachusetts plaintiffs. Plaintiffs, turn, are free to Discrimination, Against mission 371 Mass. show pretextual.” was only this court stat- 355 N.E.2d 309 That other relevant statеment made the court articulat- employer’s ed that the burden in positions to the salaried and the “[a]s ing “some legitimate, pole, use of the appear totem it would produce requires employer reason” the defendant would have the burden of its only of the reason for ac- not establishing the fundamental fairness of underlying support tion but also facts approach subjective.” largely since However, that court further that reason. Id. Again, these two statements do not employee then has the bur- stated place on prov- the burden of persuasion on the issue of whether den ing the real reason to the exclusion all was in fact the real the articulated reason others. actions, employer’s merely or reason for the opinion Peters v. Jefferson in the the court pretextual. Chemical Later 1975), F.2d 447 court stated “an also stated that must “ made out its em- give has his a lawful reason reasons for ‘[o]nce we produce facie case look to the defendant but also ployment decision must explanation for an position since he is to show reason or credible evidence that the reasons advanced were the real knows the real his employer reasons.” reasons for Id. at 355 N.E.2d at 314. The citations decision, and, decision, subjective if it is a after this statement showed that the court is very prove that it difficult for only was putting the going burden of for- reason; discriminatory a thus the em- ward on defendant, however, not the ployer should have proving the burden of proof. burden of The only other statement that his nondiscriminatory decision was by made the court on this issue was as prima once a facie case is made out. This follows: assumes, however, plurality as the here the employee has proved prima “[I]f states, practical that “the effect defend- [of facie case of sex discrimination and the rebutting plaintiff’s prima ants facie case] employer gives explanation an for a hir- . would be that there was no dis- ing decision which has no sup- reasonable crimination on the basis of sex as a matter port in the evidence or is wholly disbe- disagree of law.” I must assump- with this (and lieved hence is transparently pretex- tion practical purposes that for all the third tual), the employee prevail. should On step, pretext, where can show hand, the other if the given reason by the superfluous. pretext There ways are employer is the real reason for its action pretext can be shown. Plaintiff can show and it is a one, even if by showing that the records relied on in the commission thinks the employer’s ac- support of the advanced reason “were tion was unwise, arbitrary or the employ- fraudulent, inaccurate or otherwise unrelia- er has fulfilled its obligation of stating a they ble ... if or were intended reason and producing support for the known to Taylor be so . . . .” v. Safe- reason, stated thus rebutting prima Stores, Inc., (D.Col. way Supp. 365 F. facie case.” Id. 138-39, 355 N.E.2d 1973), part on other part, aff’d rev’d in at 315. grounds, (10th 524 F.2d 263 Cir. As case, I read this must pretext Plaintiff could also show sufficient produсe evidence to show that his stated to take of fact the issue to the trier reasons are not transparently pretextual, showing no that the reasons advanced had i.e., he must set forth evidence which would bearing ability perform on plaintiff’s reasonably justify the conclusion that the job by showing person that the actu- stated reasons were not merely convenient ally qualified in those hired was even less rationale. This is only a going burden of employer. areas relied on forward with sufficient evidence to rebut case, facie for the plurality opinion acknowledges ultimate bur- The den proof on the issue of discrimination with proof the ultimate burden of remains remains with plaintiff. At no time does the plaintiff. It also states that proof burden of itself shift to the employer. producing “the burden of case shifts give a lawful evidence to the There appear to be two reasons why some complain- treatment of explanation for its courts, apparently aloof from the fact that reading added). (emphasis A better ant” the ultimate proof burden of remains at all conclusion opinion leads to the plurality times on plaintiff, King see v. Yellow produc- adopted is one of the standard Freight System, Inc., 523 (8th F.2d 879 that the ad- enough evidence to show ing 1975); Naraine v. Western Electric purely pretextual, reasons were vanced F.2d 590 1974), seemingly place the defendants had held that plurality burden on the employer at “[t]hey failed because not met their burden second step. One simply reason is through suggest that evidence to present credible linguistic error and a misunderstanding of more than con- anything reasons were distinction those going between forward with did not plurality reasons.” venient and having the burden of proof. See, met their bur- e.g., had not that defendants Board of hold Trustees v. Swee- ney, advanced that the reasons proving 296-98, den reasons, L.Ed.2d (1978) only but (Stevens, J., the real were in fact dissenting). The second merely reason is a stated reasons feeling they in effect- had forth; (3) set based on the reasons enough suppоrt without in the evidence plaintiff’s prima rebut facie case. in fact plaintiff then can show that produce statement that defendant “must pretextual. reasons stated are credible evidence to show that the reasons reasons,”

advanced were in fact the real SHEPARD, Justice, dissenting. College, statement taken from Wheelock view, trial my I would affirm. supra, my place does not to mind the bur- illegal discrim- of no findings court’s of fact proving rea- den on defendant that the ei- erroneous under clearly are not ination sons advanced were in fact the real reasons. The feder- standards. ther state or federal It merely requires produce enough him to adjudication of claims al framework justify the conclusion that his by no means settled. is of sex discrimination reasonably reasons could have been the real majority is intent apparent It is adopted by reasons. That was the standard analysis Title VII upon applying federal College, court Wheelock and I believe and, opinion, parts my at bar the case applied that is the standard which should be majority in the are analysis contained plural- and that it is the standard which the or erroneous statements either unclear ity adopt. intended to federal law. Although subjectiveness always will re- prove To a violation of Title VII of the part hiring process many

main a 1964, types jobs, “[ajbsolute plaintiff may Rights discretion over Civil Act of employment subjective decisions where race proceed “disparate under either the treat- prejudice may (perhaps control even with- theory Douglas Corp. ment” of McDonnell out knowledge) longer the executive’s is no 792, 1817, Green, 411 93 36 U.S. S.Ct. consistent with our law.” Abrams v. John- (1973), “disparate L.Ed.2d 668 or the im- son, 1226, 534 F.2d 1231 pact” theory Griggs v. Duke Power off, Employers would legally be better both 424, 849, 401 91 U.S. S.Ct. 28 L.Ed.2d 158 and probably job-wise, they developed if (1971). disparate Claims treatment are reasonably objective hiring procedures and distinguishable disparate from claims of im- records they present then could to the pact: being court on chargеd job with discrimina- employment practices “The latter involve tion. facially that are neutral in their treat- Even I reading if am incorrect this groups ment of different but fact moreover, the plurality opinion, appears it harshly fall group more on one than an- from reading opinions both majority that a justified by other and cannot be business of this agree Court would with me that the necessity. . . . Proof of discrimina- quantum and standard of is as fol- motive, held, tory we have required is not (1) plaintiff lows: carries the initial burden disparate impact theory.” under Int’l of making out a facie case from States, Brd. of Teamsters v. United 431 inferred, which it can be “if such actions 324, 15, 1843, n. 97 U.S. 335 S.Ct. 1854 n. remain unexplained, likely that it is more 15, 52 L.Ed.2d 396 than not that such actions were ‘based on I majority’s analysis am in accord with the discriminatory illegal criterion under the plaintiff’s disparate claim under the im- ”Act.’ Furno Corp. Construction pact theory. Waters, 567, 2943, 2949, U.S. S.Ct. “Disparate readily treatment” the most (1978), quoting L.Ed.2d 957 International type understood of discrimination. States, Brotherhood of Teamsters v. United employer simply “The treats people some 1843, 1866, 97 S.Ct. favorably L.Ed.2d less (1977); (2) than others because of defendant then race, color, sex, religion, must their rebut showing by facie national producing origin. enough discriminatory Proof of evidence to show that his motive is stated credible, i.e., critical, reasons are in although fact can in some situations his decision could reasonably have been be inferred from the mere fact of differ- case, plaintiff’s prima

enees in treatment.” Int’l rebut the Brd. of Team- States, supra, sters v. United at 335 n. phase trial enters a third not treated in the at 1854 n. 15. point, plain- At majority opinion. opportunity a fair Thus, tiff is to be “afforded contrary majority, to the it is neces- petitioner’s employer’s] show that stat- sary for Donna Bowles to show that [the employee’s] defendants intended to discriminate respondent’s ed reason for [the her on the basis of sex. also Furnco rejection pretext.” was in fact Corp. Waters, Constr. v. 438 U.S. 98 Green, supra 411 at Douglas Corp. v. U.S. 2943, (1978); S.Ct. 57 L.Ed.2d 957 Sweeney 804, at also Furnco 93 S.Ct. 1825. Sеe v. College, Bd. of Trustees of Keene State Waters, supra. Corp. v. Constr. (1st 1978), 569 169 rev’d on other F.2d Cir. correctly concludes that majority The 24, 295, grounds, 439 U.S. 99 S.Ct. 58 prima Mrs. Bowles established a facie case (1978); L.Ed.2d 216 Presseisen v. Swarth- the McDonnell of discrimination under (E.D.Pa. College, F.Supp. more 442 593 I Douglas disparate treatment criteria. 1977). recognition difficulty In in case is agree proper that the focus this intent, however, proving the United States upon ability to rebut thus the defendant’s Supreme Court has established a method prima agree, case. I do not how- ‍‌‌‌‌​‌‌‌‌‌​‌‌​‌​‌‌​​​‌​​‌​‌​​‌​‌​‌​‌‌‌​​‌​‌‌​‌‌‌‍this facie plaintiff may generate which a an inference ever, failed to rebut the that the defendants upon showing of discrimination of cer- prima facie case. Corp. tain v. Douglas facts. McDonnell Green, supra. The four elements needed the de- reaching In its conclusion for a prima to make out a facie prima plaintiff’s fendants failed to rebut majority opinion. case are as set forth in the case, appears to be majority facie Dоuglas Once the four factors McDonnell apply to adopting a new standard met, discriminatory are an inference of mo- federal to such factual situations. Under Tempe tive is raised. v. Chavez Union employer need pattern practice, an 213, High School Dist. No. 565 F.2d 1087 nondiscrimina- legitimate, “articulate some 1977). rejection.” tory employee’s reason If the the initial burden plaintiff carries Green, supra at Douglas Corp. v. McDonnell case, and establishes a facie the “bur- 802, majority is now 1824. The 93 S.Ct. at employer to den then must shift to the who employer uses placing upon the Idaho legitimate, articulate some nondiscriminato- practices the additional subjective hiring rejection.” ry employee’s reason for the evidence to producing burden of “credible Green, Corp. supra v. Douglas McDonnell advanced were show that the reasons at 1824. also U.S. at S.Ct. added.) (Emphasis fact the real reasons.” Waters, Corp. supra. Furnco Constr. The are, “real” reasons We are not told whаt not, the majority burden which shifts is distinguishing goes how one about but, persuasion burden of suggests, at There are other kind. them from some rather, going burden of forward with this new ways to read possible least two per- The ultimate burden of the evidence. to em- may wish majority standard. re- suasion on the issue of discrimination something must do employer phasis that the plaintiff, who must convince mains with the Un- his reasons. merely than “state” more preponderance of the evi- the court Douglas “the McDonnell der Furnco and of dis- dence that she has been the victim simply if he is satisfied employer’s burden of Keene crimination. Bd. of Trustees ‘produces] he has done’ ‘explains what College Sweeney, State U.S. legitimate J., (1978)(Stevens, 58 L.Ed.2d ” of Keene State of Trustees reasons.’ Bd. v. Bd. of Trustees of dissenting); Sweeney has never supra. It Sweeney, College v. (1st College, 569 F.2d 169 Keene State may rebut employer been the law that 1978); Boeing F.Supp. Croker v. reason stating a by merely prima facie case employer artic- (E.D.Pa. If the evidence. support in the rejection sufficient to which has no ulates a reason for Another, subjective hiring procedures. It must way to read used logical, and more employer is as an majority’s imposi- new standard regard be noted in this upon prove employer subjective tion his “real” used a Douglas also McDonnell of all reason the exclusion other rea- hire the refusing criterion including discriminatory those of Appeals Court of Although the therein. sons— case, If this be a defendant nature. subjective reason would had said that Idaho will be saddled with a rebutting charges of carry weight little he burden more onerous than would bear in discrimination, Court said that Supreme federal court. of Trustees of Keene Bd. would suffice to meet College supra, v. Sweeney, the Court State Green, Douglas Corp. v. case. McDonnell with that very dealt issue and reversed a supra, 411 93 S.Ct. 1817. At Appeals which required Court decision then, question point, the sole is whether prove defendant an absence or established a the defendants articulated discriminatory party motive because that legitimate, nondiscriminatory reason for not greater access had to such evidence. The hiring Mrs. Bowles. noted that Court in Furnco court, upon The district based the evi- Douglas it was that an stated trial, expressly dence adduced at found that may dispel the adverse inference from a ap- was not hired “because of her simply by articulating case parent ability lack of administrative and legitimate, nondiscriminatory some reason He, failure to others.” her to relate well employee’s rejection. The Court therefore, a matter of law concluded as that significant- then declared that is a “there justifiable “there reasons for were the de- merely distinction ‘articulat[ing] between plain- not to hire the fendant school district legitimate, reason,’ some judge’s tiff.” This Court can overturn the ‘prov[ing] and absence of discriminatory by that it was ruling “clearly decision . motive’. . . will former suffice [T]he 52(a). erroneous.” This same I.R.C.P. to meet the employee’s prima facie сase of judge-tried to applicable standard is dis- discrimination.” at 295. The g., crimination in federal court. cases E. Court also noted placing the burden of Corp., (8th Garrett v. Mobil Oil F.2d 892 proving the absence a discriminatory mo- 1976); Causey Ford Motor tive on the employer, F.2d 416 “would superfluous make entirely third step in the Furnco —McDonnell appeal record, On it is axiomatic Douglas analysis, place since would evidence, arising inferences and the stage at the second the bur- therefrom favorably are to be viewed most den of showing rejec- that the reason for respondent support to the in and tion was not pretext, rather than re- findings of the trial court. Matter of Es- quiring proof such the employee from Webber, tate of 97 Idaho P.2d 1339 part of the third step.” S.Ct. at 295 n. appellant’s experience As to in ad- ministration, testimony indicates that 1. aside from formal education she this had wishes, states, If Court as it to follow years law, approximately worked seven as a question federal then the proper before subjects teacher of business such as short- simply us whether the defendants articu- hand, typing, and business law in lated or three established that there was a legiti- mate, them, In high different schools. two of she nondiscriminatory reason for not hir- taught ing supervision Mrs. under the of her hus- justification Bowles. is no There band, high basis who school principal. in the case law was the imposing upon for the defendants the Two of those numbered obligation prove approxi- to schools was the mately “real” ap- reason the exclusion 150 students as contrasted with impose of others. To proximately high that additional in 600 Moscow school. defendants, burden on majority years ostensi- For two winter season she uses bly the fact taught the school district adult classes in education shorthand under typing supervision my judgment, of one In the record supports here application

Andruiza. had made She for a the finding of the trial court “that teaching position high at Moscow school and defendant, by was not hired later position for a in administration at the Distriсt, high Moscow as the school School University of Idaho and was not hired for apparent vice-principal because of her lack position. During either 1973 and she ability of administrative and her failure to application positions made as Moscow Thus, relate well to others.” evidence was junior high vice-principal, school Moscow legitimate adduced to show a nondiscrimi- high vice-principal, high school and Moscow Thereafter, appellant natory reason. had principal. any school was not She hired for produce opportunity full evidence to positions. of these she has Since was, refusal to show that defendant’s hire worked as legal secretary for her husband. fact, This she sexually premised. did majority opinion, appel- As stated in the do. I would that since the trial court’s hold lant was interviewed defendant Keating erroneous, ruling clearly was not we are Swartz, who was principal then the 52(a). bound it. accept I.R.C.P. high Moscow school. Both testified that my judgment, majоrity opinion they felt Bowles experience lacked direct ignores clearly supports the record which teachers; supervision over the that her ruling appears of the trial court and experience in smaller schools would handi- be influenced two additional factors. cap in dealing administratively her with appears The first to be that the trial court computerized scheduling grading in a appellant expressly recognize did not Moscow; large school such as that she had had established a facie case of sex experience working discipline little with discrimination. If trial court had dis- problems; the they and when checked with for- Bowles, supervisors plaintiff’s mer it case reported was missed case at the end of her difficulty relating that she had in to others analysis in chief or ended his with the sim- in the area of human relation skills. That ple met her conclusion that she had not testimony supported by was the testimony case, I, establishing burden of Andruiza, of one supervisor a former too, However, would vote for a reversal. Bowles. erroneous statement purportedly judge majority opin- trial contained in the true, majority

It as asserted ion occurred at the conclusion of the entire opinion, subjective and unstructured trial, evaluating appel standards were utilized in since the trial court at that time However, application. lant’s it is also true legitimate reasons had heard evidence hiring promotion that decisions of or hire, I would hold that he for the refusal to necessarily upper jobs may level involve point suggesting was correct in intangibles as such abstractions and leader tendering showing necessity of others, ship, personality, ability to relate to sexually was hiring decision difficult, supervisory ability, which are Appellant was not halted at the premised. impossible, realistically if not measure have held that Federal courts “threshold.” objective techniques Rogers alone. v. proof as classifying plaintiff’s any error Co., (8th Paper Int’l 510 F.2d 1340 Cir. prima facie case is insufficient to creаte a 1975), vacated and remanded on another See, Liberty v. g., e. harmless error. Smith issue, 46 423 U.S. 96 S.Ct. L.Ed.2d Co., (5th 1978); Mut. Ins. 569 F.2d Cir. remand, (1975), opinion 526 F.2d 722 Co., 516 F.2d Peters v. Chem. Jefferson Note, (8th 1975), Employ VII and Cir. Title (5th 1975). Jobs, “Upper ment Level” Discrimination view as influ- The factor which I second (1973). Subjective Colum.L.Rev. is the trial encing majority opinion per not se violative of hiring procedures are ap- “that all nine of court’s conclusion VII, Co., Paper supra; Int’l Rogers Title high vice-prin- school plicants job Railroad 497 F.2d Hester v. Southern against, but said cipal were discriminated sex, not based on P.2d 473 discrimination was was That illegal.” KEENAN, said discrimination Plaintiff-Appellant, Rosalie probably conclusion is substantiated in record as a desire on behalf of the defend- BROOKS, A. Rattle and Luise A. Cecilia ants-respondents hire a current employee Taylor, Wilburta E. district, of the school or an The “insider.” Defendants-Respondents. majority opinion appellant finds that “had significant background more administrative No. 12335. than the person who was hired.” I would Supreme Court of Idaho. disagree finding majоrity. with that of the I would view the record otherwise and Feb. 1980. note that the trial court made no find- such ing. sustains, up- record and I would

hold, finding the trial court that

appellant qualified was not the most applicants job regardless

nine qualifications might

what her be when com-

pared to those of the “insider.” The conclu-

sion to be drawn from is that a male qualified appli-

who was the most

cants, Bowles, as well as Mrs. appear

have been discriminated in favor of

an “insider” happened who also to be a may

male. While such be offensive to our

abstract play, notions of fair I hold would ruling trial judge correct illegal was not an form of discrimi-

nation. Discrimination is not unlawful un-

less the form of discrimination is constitu-

tionally statutorily forbidden. B. ‍‌‌‌‌​‌‌‌‌‌​‌‌​‌​‌‌​​​‌​​‌​‌​​‌​‌​‌​‌‌‌​​‌​‌‌​‌‌‌‍Schlei Grossman, P. Employment

& Discrimination

Law 15 practice A of “cronyism” or hiring instances,

“insider” inmay, some be

facially neutral, but also have a discrimina

tory impact. Local 53 of Int’l Ass’n of

Heat and Frost Insulators and Asbestos Vogler,

Workers v. F.2d 1047

1969); City Richmond, Lee v.

F.Supp. (E.D.Va. 1978). However, I

find no such evidence of im discriminatory

pact in the case at bar.

I would affirm the decision of the lower

court.

BAKES, J., concurs. notes any formal take did either which are in controver- flow from the facts Keating testified Defendant was an interviews. there sy. spring In the objective no utilized he and Swartz principal at position of vice opening for the those inter- to evaluate tests or standards The school district High Moscow School. main, they evaluated viewed. In the colleges opening of that gave notice Upon subjectively.1 responses Northwest, applicants’ to the and the Pacific California Keat- process, the interview completion of Employment. Department Idaho State interview ically specifically Bowles’ remember about interviewer could 1. At triаl neither enough in re- go detail into questions she did not specific the inter- asked at recall they were. questions specif- sponse to his all he could testified that views. Swartz —whatever ing specifi- any rejection application: for the of her Swartz decided not to hire the nine applicants and instead offered the ability of administrative cally, her lack position to a others; man who had never filed an her to relate inability official application position for and did erroneously judged the district school not hold an Idaho Administrator’s Certifi- subjective evalua- applicants the basis of cate.2 objective standards. using tions than rather relating specifically As to Bowles and the initially that this action point We out rejection position, reasons her does not an asserted violation of involve Keating defendant testified that his (42 Rights Title VII of the Civil Act of 1964 opinion experience she lacked direct in the 2(a)). this ac- U.S.C. Neither does § 2000e— supervising of other teachers. He also ex- any tion Bowles’ allege violation pressed previ- concern that because she had rights constitutional under either the Unit- ously schools, worked in smaller she would

Case Details

Case Name: Bowles v. Keating

Court Name: Idaho Supreme Court

Date Published: Sep 11, 1979

Citation: 606 P.2d 458

Docket Number: 12524

Court Abbreviation: Idaho