Joan E. Verniero v. Air Force Academy School District 20

McWILLIAMS, Before BARRETT and McKAY, Judges. Circuit

BARRETT, Judge. Circuit Joan E. Plaintiff-appellant, Verniero suit (Verniero) against defendant-ap- filed pellee Academy Air Force District School (School District) # 20 alleging discrimina- tion based sex under on Title VII of amended, Act Rights Civil 42 U.S.C.A. seq. (1981). 2000e et The basis of the § dis- complaint School District against criminated Verniero the selection positions: (1) for two applicants Elemen- tary Principal at Edith B. School Wolford School; (2) Director of Elementary Ver* Special Education District # 20. damages; requested niero as relief: money Dis- also investigation processes selection The court found that going for- had carried the burden of positions; for both a review trict articulating plan affirmative to elimi- and of District’s action ward with com- discriminatory practices non-discriminatory Verniero’s nate reason for of; attorney’s and costs and fees. then plained district non-selection. requested suggestion also the court to retain Verniero that since there was no found to assure full jurisdiction any over the action mem- improper by reason utilized any with the orders. After a the compliance court’s committee or screening ber of either trial, judg- decisions, the entered hiring bench district court Ver- regarding Board the ment for the School District. A recital of intent proven not motive or niero had facts our re- pertinent (i.e. the will facilitate reasons the articulated discriminate not and, view. did pretext); were not Verniero she proving the ultimate of carry burden 27, 1978, March the District On victim of discrimination. was the intentional elementary vacancy a notice for the posted Dis- for the School Judgment was rendered principal position. school The notice listed trict. Three following qualifications: “1. 2. Mas- years experience public schools. new trial later for a Verniero moved degree equivalent required. ters or is A court. the district by which was denied D is neces- Type Administrative Certificate tri- appeal Verniero contends On Def.Ex. L. was one sary.” Verniero of give not (1) erred in it: did al court for thirty applicants two female and total had its that Verniero weight due screening A six com- position. member case; (2) not a did prima established facie mittee, composed females and two of four findings whether the make as to males, selected ten individuals to nine or subjective in its se- Board’s use of criteria for interview. Verniero was not selected was for process pretext a convenient lection The an interview. Board of Education then bias; (3) did not effect to sex giving interviewed four and selected individuals waiver of any finding regarding make Sharon, resident, Michigan Mr. Dennis a selected D certificate for the male Type possess Mr. principal. Sharon did not further position. Verniero principal for the Type D Administrative Certificate. its “abused court contends vacancy for the job posted notice which its the trial discretion in conduct of of position Special Appellant’s Director of Education prejudicial to plaintiff.” was “(1) the following qualifications: listed p. at Brief Special years experience Three in area of governed is Our standard of review (2) Type Education. Prefer D endorsement agree clearly rule. We by the erroneous endorse- Sped [Special and/or Education] is not the district court that “[i]t F. one ment.” Def.Ex. Verniero was of expertise nor within the duty a court is it of for applicants five female and total eleven whether attempt the courts to to decide withdrew. position. person One later was judgment employer the business man inter- screening A three committee super is not right wrong. or The court applicants viewed all the and recommended All that a personnel department. Pratt, psy- Mr. District # 20’s school Steve review of limited very does is to exercise chologist, Board. The Board hired practices employment Pratt. Mr. law practices if the are shown see ” undisputed quali- It is Verniero func R., sole p. Vol. III 9. Our ful.... positions. fied for both record to appeal tion on to review supports whether ascertain The district that Verniero court found are not findings, which prima court’s had made out a facie case of discrimi- clearly errone they unless be set aside nation under standards enunciated in Green, F.2d Coffey, Thornton McDonnell-Douglas Corp. v. ous. findings are (1973). Cir.1980). “We have held clearly un- argues not be determined erroneous Verniero reasons articu- for less, record, after we lated School District her non-se- a review entire purely subjective, lection were and that are left with a definite and firm conviction high level subjectivity that a been mistake has made.” Id. 690 “[s]uch making decision process subjects selection (citation omitted). the ultimate decision to an intolerable oc- disparate A VII action Title treatment currence conscious or unconscious in- promotion proceeds Appellant’s p. tent.” Brief at following manner: In a recent case we examined the has first the burden es- issue qualifications and held tablishing prima employ- facie case of employer’s subjec that failure to meet an ment discrimination under the standards plaintiff’s tive criteria could not defeat Corp. set forth in Douglas McDonnell prima facie case. v. United Tele Burrus Green, 792, 1817, 411 93 36 S.Ct. Co., phone 683 F.2d at Such is not the 342. (1973), Depart- and Texas concededly quali case here. Verniero was Community Burdine, ment of Affairs v. positions. fied for both established her She 248, 1089, 450 U.S. 101 S.Ct. 67 L.Ed.2d prima rejected ease. facie She was for both the prima If facie case is positions opinions based on the of established, the defendant must articu- serving screening evaluators on the commit evidence, reason, using late a admissible circumstances, tees. these Under Verniero to explain reject- “the why “ is entitled ‘to the of an benefit inference ed, preferred, legiti- or someone else for a discrimination, which inference requires mate, nondiscriminatory reason.” Texas ... defendant to come forward and Affairs, Department Community legitimate for her articulate reasons non-se 254, U.S. at 101 S.Ct. at 1094. such a If ” Telephone Co., lection.’ Burrus v. United offered, reason is prevail order to Bailar, supra p. (quoting at Bauer plaintiff must demonstrate de- that (10th Cir.1981)). F.2d 1037 fendant’s articulated reason mere is a District, School pretext for unlawful Id. discrimination. found, court did come and forward articu 256, Throughout at at 1095. late reasons for Verniero’s non-selection. stages, per- these the overall burden of respect Elementary With to the School suasion with the plaintiff. remains Id. position, for Principal witnesses the School Telephone Kansas, Burrus v. United Co. of experience District testified that her had Inc., 339, (10th Cir.1982). 340-41 education, mostly R., in special been Vol. II The trial court that found Verniero had pp. “[m]any and that of the other established prima a facie case under had a years many candidates number of — supra. McDonnell Douglas, years in some experience similar to cases— what would expect we to have at Wolford argues, however, Verniero words, p. school.” Id. at 64. In other other “failing trial court erred in due give were qualified. candidates better One weight to its that plaintiff estab of the screening member committee also prima lished a case.” Appellant’s facie question testified that she had some about Brief at p. argument 12. We find this ability Verniero’s to be flexible to work meritless. The trial court Ver found that faculty people with the and the in the com prima niero had established facie case. p. Id. at munity. The court then properly shifted the burden production of evidence to the Dis School respect Special With to the Director legitimate, trict to articulate a nondiscrimi position, of that Education each member natory reason Verniero’s for non-selection. committee to the effect screening testified R., Vol. III pp. 6-8. trial court then ability that he had doubts about Verniero’s R., found that the District along pp. had articulat with Vol. III get people. such p. 52, 94, ed reasons. Id. at 106. Two members of commit- believe, here, we Significant Id. is concern about Ver- particular

tee expressed 26].” court, existing problems that when a case is tried ability niero’s to correct school, the troubled rela- regarding conflicting at the resolution witnesses, education and tionship special credibility between the determination of pp. Id. at regular programs. education into taking and demeanor appearance their that her member testified consideration, 107. One re- particularly are matters led interview questions answers to judge. province served him to if were select- believe that Verniero States, 553 F.2d 1233 Dowell United perpetuated ed the would be rath- problems (10th Cir.1977). er than Id. at 107. solved. inasmuch as Verniero contends Subjective play legitimate evaluations waived the D ad Type District part determination wheth- employer’s in an selectee, for the Mr. certificate ministrative ability along employee get er an has the Sharon, joba having quali listed it as after with others. This is business position, the trial principal fication for the reason the non-selection of Verniero. making finding in not erred This true in case such as particularly pretextual. Testi proffered reasons existing this where at the school problems certificated require mony indicated process at the the selection had time of certain circumstances ments were waived in do interaction and commu- inadequate with R., p. Ill personnel. Vol. out-of-state nication. indicated an out- Testimony also only need ad produce “[T]he princi for the person preferred of-state was which would allow the missible evidence 130, 131. Verniero pal position. pp. Id. at trier to rationally of fact conclude the prove by preponderance not did not employment decision had been motivat were the articulated reasons evidence that by discriminatory ed animus.” De Texas Burdine, supra. did pretextual. She See Burdine, partment Community Affairs v. persuade not the court that discriminato 1089, 1096, 248, 257, 450 101 67 S.Ct. U.S. ry likely reason motivated the School more (1981). Dis L.Ed.2d 207 Since School District, expla or that the School District’s Ver trict articulated reasons for unworthy of credence. Bur- nations were non-selection, niero’s the inference of dis 256, dine, at 101 at supra 450 S.Ct. U.S. an in Similarly, crimination is overcome. court’s supports 1095. The record trial long no ference of intent to discriminate is District did not that er “now available to Verniero. Verniero against Vernie impermissibly discriminate to opportunity must have the demonstrate ro. was true proffered reason not the argues that Verniero also Bur employment reason for the decision.” judge prejudi in a manner which acted dine, 256, at “This at 101 S.Ct. 1095. id. First, trial Verniero attacks the cial her. bur merges burden now ultimate approval to and court’s references den of the court that she has persuading selec similarity the School Board’s between been intentional the victim of discrimina Magis the United States process tion succeed may tion.” in this either Id.1 “She Second, process. she at trate’s selection the court that a dis directly by persuading close tacks the court’s comments likely criminatory reason more motivated exhibiting of the trial distaste indirectly by showing or employer “[i]ts on civil upon attacks Board members explanation is un employer’s proffered ” Appellant’s Brief at rights worthy Doug credence. McDonnell matters.... See las, U.S., 1825- 411 at 804-805 S.Ct. at p. [93 States, presence v. United U.S. 97 S.Ct. 52 “It should be noted that of dis- Accord, Coe v. Yellow highly important (1977)). criminatory and in- motive is Inc., Freight System, F.2d 444 Cir. deed for the succeed critical order Bailar, supra, 1981). Bauer v. here.” at 1044 F.2d Brotherhood Teamsters (citing International Co., arguments Gypsum

We find both to be without United States merit. The trial court did indicate it 92 L.Ed. 746 It is not the thought processes the two selection appeals weigh function of court of similar; however, these comments had no conflicting evidence and to consider the bearing on the three-part analysis regard- credibility of witnesses. United States ing the man- shifting persuasion burdens of Gibbons, (10th Cir.1979). 607 F.2d 1320 Burdine, Douglas dated McDonnell remaining We have examined Verniero’s supra. analy- The trial court followed We they contentions. hold without sis and concluded that no sex discrimination merit. Indeed, had occurred. she Verniero admits AFFIRMED. quarrel has no with the se. process per Appellant’s p. Brief at court’s The trial comments, therefore, were of no moment. McKAY, Judge, dissenting: Circuit With regard to the second contention in- resolving employment In Ms. Verniero’s remarks, volving the trial court’s delivered claim, majority applies at the preliminary close of the bench trial analysis method of that is inconsistent with

the court’s of fact and conclusions our recent decision in Mohammed v. Calla law, we view them as misplaced, but (10th Cir.1983). way, 698 F.2d 395 I view harmless in context.2 controlling Mohammed as the authority and We have reviewed the entire record. We am compelled therefore to dissent. hold that clearly trial court was not Mohammed, In a Hispanic civilian em- concluding erroneous in the School Board ployee Army applied supervi- for a did not discriminate against Verniero on the position response posted job sor’s to a basis of sex. There is substantial evidence vacancy announcement. announce- support the trial court’s Bur- conclusion. specific job qualifications ment listed Co., rus v. Telephone United supra. “Find- ings minority applicant possessed. Follow- of fact shall not be set aside unless clearly erroneous, ing application, his relaxed regard and due shall be given job qualifications the and hired a non-mi- opportunity of the trial court to judge credibility nority applicant. non-minority appli- the of witnesses.” Fed. 52(a). Appellate original job qualifica- R.Civ.P. courts cant did not have the up- cannot tions, set a trial findings firmly court’s unless but nevertheless was hired over the that, record, convinced from minority applicant “subjec- the entire a on the basis of mistake has been made. United tive The minority applicant States factors.” sued making findings tempted pro- Before his oral of fact and would be them. enforce law, judge XVIII, conclusions of made the vision I have in mind is in Title which following code, remarks: is the criminal and it’s Section 4244 of says the criminal code. That section part any findings Not as a of fact or as question when the has Court reason to the any law, purely pre- conclusions of but as a defendant, sanity of a the must order a Court liminary matter, the courts of the United mental examination. today, States of America because of the re- wonder, applica- And I if that section were quirements imposed upon by the courts Con- ble, every if school in gress, board member the supposed are for some reason United States shouldn’t be ordered examined experts everything. in IAnd fear that the why any- judges under Section 4244. I don’t know quali- of the United States of America any fy experts very one would serve on school board. But things. as in few But what way any only Congress the that I know that school every has done is that time Con- employer absolutely gress gets problem board member or can be passes a difficult the avoiding assuredly, buck to sure of discrimination cases is to the courts. And I most only handicapped having expert hire am no in females matters such as this. All I Black, Chicano, grandparents country know is an Ameri- that federal courts of this Oriental, totally and an who is over 50 burdened with discrimination can Indian every type, description. years age. cases of care of all of nature and I think that takes And, indeed, provisions if certain of the crim- the discrimination statutes. applicable cases, R., pp. inal code were to these I Vol. III 2-3. job trial, posted the board three cates that school Following

under Title VII.1 a bench position principal: the illegal requirements no the district court concluded that schools; in 1) experience public appeal, years we three discrimination had occurred. On 3) equivalent; or 2) degree estab- a master’s the had determined certificate. Ms. Type McDonnell D Administrative prima lished a facie case under requirements; Green, met these three 93 Verniero Douglas Corp. v. nevertheless, who did not applicant a male Mo- chosen on hammed, D certificate was analyzing possess Type In 698 F.2d factors. subjective subjective by factors cited the basis whether employer legitimate constituted nondiscrim- determina- reviewing the trial court’s In rejecting minority inatory reasons for illegal no discrimina- tion that there was applicant, first determined that since we tion, analy- follow the method of we should minority applicant had met the stated should first out in Mohammed. We sis laid job qualifications, applicant while the other examined properly if the trial court inquire not, more minority applicant had qualified Verniero was more whether Ms. own highly qualified employer’s under specific under the applicant the chosen than published criteria. 698 F.2d at 399-400. school set forth job qualifications in Turning subjective to the use of factors if, in determin- should then ask board. We rejecting minority applicant, we stated based employer’s decision was ing that reasons, nondiscriminatory on supports use of factors consideration gave adequate inference when an pretext subjective factors employer’s use of justifies rejection' minority of a candidate any other rejecting Ms. Verniero and though on the basis of such factors even from the appears It pretext. evidence of minority objectively quali better not consider the trial court did record that Ad non-minority fied than the chosen. nor did it make inquiries, either of these Gaudet, F.Supp. ams apply [v. that enable us to factual (W.D.La.1981) subjec The use of such be said as ]. test. While it cannot Mohammed criteria “enthusi

tive as “dedication” and Ms. Verniero of law whether a matter “may pre asm” also offer a convenient analysis under the method of prevail would giving text for force and effect to racial Mohammed, is evidence to there provided prejudice,” Coffey, Thornton I pretext. claim of would support [v. her (10th Cir.1980)], and “can create this case to district therefore remand strong inference of discrimination if proceedings light court for further in. showing significant disparity there is a event, must In this court Mohammed. particular of a representation choosing In to reach recognize Mohammed. Bailar, 1037, group.” Bauer 647 F.2d case, majority is re- [v. merits of this (10th Cir.1981)]; v. 1045 see also Abrams that analysis method of quired apply to Johnson, 1226, (6th 534 F.2d 1231 Cir. an en banc forth. Absent Mohammed sets 1976); Adams, F.Supp. 515 at 1097. Mohammed, pro- overturning decision vides the law of this Circuit. the use 698 F.2d at 401. We concluded that factors, with other together Mo- raised under Beyond the issues employ- pretext, rebutted hammed, court is of the district the decision non- proffered er’s statement of state- inappropriate suspect by rendered the mi- discriminatory rejecting reasons for bench, judge. by the trial from the ments nority applicant. accordingly We reversed of fact findings his oral judge prefaced judgment. the district court dis- with statements of law and conclusions VII, litigants and Title paraging Congress, The instant case situation presents cases.2 His employment in analogous to Mohammed. The record indi- (1976). Judge follows: stated as 42 Winner U.S.C. 2000e-2000e-17 §§

395 atti- in displayed clearly maintaining public ju- statements hostile in the confidence VII, a he tude toward Title statute that regard-, Congress In this diciary. codified obligated my to and In interpret enforce. Bar the American Association’s standard of view, judge’s provide strong statements conduct, judicial upon the imposing federal grounds questioning impartiality. his judge obligation disquali- the affirmative They are particularly inappropriate in a “in fy any himself proceeding which his case where findings he must make factual impartiality might reasonably be ques- concerning motivation and intent —issues 455(a) 28 (Supp. 1981) tioned.” U.S.C. V. § objective that not amenable to verifica- (codifying Canon 3 of the ABA C Code of tion. If courts are retain confi- public Conduct). Judicial they adjudicate dence that ques- can these I judge’s believe district court fairly, tions must judges conduct them- statements in the flatly instant case are selves a manner that casts no doubt on impartial inconsistent with the demeanor their impartiality. Moreover, required by the they statute. This long recognized impor court has express totally inappropriate hostility to- judicial tance of impartiality, holding that law charged apply. ward the he is Even appellate courts have power inherent questions present- if no other were error assure the absence of bias in the district ed, these statements would raise colorable Texaco, Chandler, courts. Inc. grounds for trial. granting new 655, (10th Cir.1965), denied, 657 cert. 383 case, In this there exist serious doubts 936, 1066, U.S. 86 S.Ct. 15 L.Ed.2d 853 legal the correct standard for deter- (1966); Ritter, see United States v. F.2d 540 mining employment discrimination ap- denied, Cir.), 459 cert. 97 U.S. plied. these and given Given doubts 370, 50 (1976); S.Ct. L.Ed.2d 319 Occidental intemperate remarks of trial judge, I Corp. Chandler, Petroleum 303 F.2d 55 judgment believe we should vacate the (10th Cir.1962), denied, cert. remand case for a new trial. 718, 9 722 (1963); S.Ct. L.Ed.2d United Ritter, (10th Cir.1959), States v. F.2d 30 denied,

cert. 362 U.S. Recently, Congress has

recognized appearance impar

tiality is important as actual impartiality Court, every type, description. Because it is trial to Rule 52 cases of nature and And, indeed, provisions mandates I do not have the same de- if certain of the crim- lightful luxury jury just finding applicable cases, that a has in inal were to these code I party against in favor of tempted pro- one the other. be would to enforce them. The contrary,

To XVIII, the exact in a trial to the Court I I vision have in in Title mind is which findings must code, make of fact and conclusions is the criminal Section 4244 and it’s law, may they albeit not be in tremendous says the criminal code. That section case, hopefully they detail in this but will be question when the Court has reason satisfy requirements of sufficient to Rule defendant, sanity of a must the Court order a 52 of the Rules of Federal Civil Procedure. mental examination. any part Not as a or as of fact wonder, applica- IAnd if that section any law, purely pre- conclusions of but aas ble, every, if school board member liminary matter, the courts of United States United shouldn’t be ordered examined today, States of America the re- because of why any- Section under I don’t know quirements imposed upon the courts Con- serve one would on school board. But gress, supposed are for some reason only way that I know that school experts everything. And I fear that absolutely board member or can be judges quali- of the United States of America avoiding sure discrimination cases is to fy experts very things. as few But what only handicapped having hire females Congress every has done is that Con- time Chicano, Black, grandparents an Ameri- gress gets problem passes a difficult Oriental, who can Indian and an is over 50 assuredly, buck to the And most I courts. years age. I care of all of think that takes expert am no in matters such as All I this. the discrimination statutes. country know is that federal courts of this Record, Vol. at 2-3. totally burdened

Case Details

Case Name: Joan E. Verniero v. Air Force Academy School District 20

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 13, 1983

Citation: 705 F.2d 388

Docket Number: 81-1793

Court Abbreviation: 10th Cir.