HR-87-023-JL
8 -17 00-1 4 2 5 -2
DHR File Nos. E12500,
E12501, E12503 and E12544
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS
State of Minnesota, by
Stephen W. Cooper, Commissioner,
Department of Human Rights,
Complainant,
FINDINGS OF FACT,
V. CONCLUSIONS AND
ORDER
Independent School District No. 701,
Respondent.
The above-captioned matter came on for hearing before Administrative Law
Judge Jon L. Lunde on November 15 - 17, 1988 and January 9 - 12, 1989 at the
Courthouse in Hibbing, Minnesota pursuant to a Complaint and a Notice of and
Order for Hearing dated March 17, 1981.
Carl M. Warren, Special Assistant Attorney General, 1100 Bremer lower,
Seventh Place and Minnesota Street, St. Paul, Minnesota 55101, appeared on
behalf of the Complainant. Paul F. Wojciak, Attorney at Law, Hibbing Business
Center, Suite 201, 522 East Howard Street, Hibbing, Minnesota 55746, appeared
on behalf of the Respondent (District). The record closed on June 16, 1989,
when the Administrative Law Judge received notice that the Complainant would
not be submitting a reply brief.
NOTICE
Pursuant to Minn. Stat. 363.071, subd. 2, this Order is the final
decision in this case and under Minn. Stat. 363.072, the Commissioner of the
Department of Human Rights or any other person aggrieved by this decision may
seek judicial review pursuant to Minn. Stat. 14.63 through 14.69.
STATEMENT OF ISSUES
The issues in this case are as follows:
(1) Did the Respondent refuse to hire four women who applied for teaching
positions for the 1984-1985 school year because of their age in
violation of Minn. Stat. 363.03, subd. 1(2)(a) (1984)?
(2) If the Respondent engaged in illegal discrimination on the basis of
age in refusing to hire any of the Charging Parties, what damages and
other relief should be ordered to correct its actions?
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. Joy Ann Smith, Illona K. Jaksha, Susan L. Havercamp and Laura Ann
Lignell (Charging Parties) filed charges of age discrimination against the
Respondent following the Respondent's failure to hire them to fill four
Chapter I teaching positions for the 1984-85 school year. Three of the
charges were filed on November 14, 1984; one charge (Havercamp's) was filed on
December 2, 1984.
2. The Chapter I program -- previously the Title I program (hereinafter
Chapter 1) -- is a federally funded program designed to supplement the regular
classroom instruction of elementary students whose math and reading skills are
below the students' grade level. For over 20 years, and at all times material
to this proceeding, the District participated in the Chapter I program. Under
its program, the District provided remedial instruction in math and reading to
each eligible student 20 to 30 minutes daily. The District's program was
essentially a "pullout" system: students needing special help left their
regular classrooms to meet with the Chapter I "tutors." Historically, the
Chapter I program has been funded on an annual basis. The District usually
received notice of the availability of federal funds late in August each
year. Prior to the 1983-84 school year, the Respondent used paraprofessionals
to teach remedial math and reading to elementary students under the Chapter I
program. These paraprofessionals were not required to be licensed teachers --
although almost all of them were -- and they were generally hired on a
year-to-year basis from the District's substitute teacher list. During the
4-year period prior to the 1983-84 school year, the Respondent employed eight
such paraprofessionals. These paraprofessionals did not have tenure as
teachers and earned no seniority rights. Instead, they were appointed under a
"letter of assignment" having a one-year term. However, once employed, the
paraprofessionals were routinely reemployed. They were not interviewed each
year. Instead, they simply notified the District by letter that they desired
reemployment. They all expected reemployment if federal funds were
available. Smith, Jaksha, and Lignell were all employed as Chapter I
paraprofessionals by the Respondent prior to the 1983-84 school year.
3. Joy Ann Smith, born June 15, 1933, is a licensed elementary school
teacher who resides in Hibbing, Minnesota. Smith graduated from Bemidji State
University with a Bachelor of Science degree in education in the spring of
1955. At that time she received a Minnesota teaching license having a
kindergarten endorsement. During the three school years following graduation,
Smith was employed as a first grade teacher for the District. The next two
years she was unemployed. During the 1960-61 school year Smith returned to
work as a substitute elementary teacher in Grand Rapids, Minnesota. During
the next 19 years, Smith was not employed and her teaching license expired.
4. In 1980, Smith obtained a provisional teaching license which
authorized her to work as a substitute teacher, and during the 1980-81 school
year she worked as a substitute elementary teacher for the Respondent on a
weekly basis. Thereafter, Smith was employed by the Respondent as a full-time
paraprofessional in the Chapter I program. She was initially hired for the
1981-82 school year by Laverne Walters. Walters was an elementary school
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principal and the Respondent's Chapter I director/administrator. During the
1981-82 school year Smith worked at the Jefferson Elementary School and was
supervised by John Drazenovich, the school's principal. During the 1982-83
school year, Smith worked for the District in a local parochial school and was
supervised by Walters. Smith never received any formal performance
evaluations as a Chapter I paraprofessional; however, the principals of the
schools where she worked thought very highly of her job performance and wrote
letters of recommendation on her behalf. Both letters have been in her
personnel file since 1983 or before.
5. Smith's license to teach elementary education (grades 1-6) and
kindergarten was renewed in July 1984 after she completed two human relations
courses. In addition to those courses, Smith attended weekend "workshops"
offered by the District while she was a substitute teacher. Thereafter, when
Smith became a Chapter I paraprofessional, she attended four inservice
training sessions and one 2-day workshop each year.
6. Illona K. Jaksha was born on May 17, 1930. She graduated from
Wisconsin State College at Eau Claire in June 1951 with a Bachelor of Science
degree in elementary education. Upon graduation she obtained a Wisconsin
teaching license having a kindergarten endorsement. Between 1951 and 1959
Jaksha was employed as an elementary teacher in Barron and Wauwatosa,
Wisconsin. Thereafter, she moved to Minnesota. From 1959 through 1963 she
was employed as an elementary teacher in Robbinsdale, Minnesota, and for the
1963-64 school year she was employed as a second grade teacher in Hibbing.
She worked until December, 1963 when she resigned because she was pregnant.
7. Jaksha returned to work as a substitute teacher for the Hibbing
school district for the 1978-79 and 1979-80 school years. During this time
she worked as a substitute elementary teacher at all of the District's
elementary schools. In October 1980, Walters asked Jaksha to teach in the
Title I program. Jaksha was employed in the Chapter I program for the
remainder of the 1980-81 school year and the following two school years
(1981-83). During the 1980-81 school year Jaksha was assigned to the
Jefferson Elementary School and was supervised by Drazenovich and the lead
teacher in the Chapter I program, Carol Cicmil. During the next two years,
Jaksha worked at the Cobb Cook Elementary School and was supervised by Walters
and Cicmil. Although Jaksha did not receive any formal written job
evaluations while employed as a Chapter I paraprofessional, Drazenovich and
Cicmil were pleased with her performance and told her that she was doing a
good job.
B. Between 1980 and 1981 Jaksha took an extension course relating to
exceptional children. In addition, between 1980 and 1983 she attended two
2-day Chapter I workshops. Prior to the 1984-85 school year paraprofessionals
in the Chapter I program had four days of inservice training and at least one
2-day workshop each year. The inservice training was given by Cicmil.
9. Laura Ann Lignell was born November 4, 1948. In June 1971 Lignell
graduated from St. Cloud State College with a Bachelor of Arts degree in
elementary education. While in college she concentrated in mathematics.
Later, during the 1981-82 school year Lignell earned 15 credits in special
education from the University of Minnesota at Duluth, taking courses in
reading, math and assessing children with special needs. In 1975 Lignell took
a 3-credit course at Bemidji State University pertaining the diagnosis and
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correction of reading difficulties. In 1983 Lignell also took a course on the
operation of computers and she attended several workshops pertaining to
Chapter I teaching methods.
10. Upon graduation from St. Cloud State College in 1971, Lignell was
licensed to teach in elementary school, grades I through 6. During the
1971-72 school year and the subsequent two school years Lignell taught first
grade in Moose Lake, Minnesota. At the end of the 1973-74 school year Lignell
moved to Hibbing and she worked as a Chapter I paraprofessional for the
Respondent on a part-time basis during the 1974-75 school year (from November
through June). During the 1976-77 school year, Lignell worked as a substitute
elementary school teacher for the Respondent and, from February through June
of 1977, she worked as Chapter I teacher for the Respondent at the Greenhaven
Elementary School. During the 1977-78 school year, Lignell again worked as a
substitute elementary teacher for the District. After taking a year off work
(1978-79), Lignell returned to her employment as a Chapter I paraprofessional
for the District. She worked in that program for four school years -- from
the fall of 1979 through June 1983. During that 4-year period Lignell worked
at three elementary schools operated by the District and was supervised by
three different principals: Drazenovich, Walters and Dan Molesky.
11. Throughout the course of her employment as a Chapter I
paraprofessional Lignell did not receive any formal written job evaluations.
However, she did receive positive verbal praise from elementary school
principals. Drazenovich told her that she had good rapport with students and
was doing a good job at the Greenhaven School, and Drazenovich actually
requested that Lignell help a classroom teacher establish control in a
classroom. Walters and Molesky also made postive remarks concerning her job
performance. In fact, both of them wrote letters of recommendation commending
her performance. Walters wrote a letter on her behalf in 1981 and Molesky
wrote a letter in May 1982. In those letters they commented on Lignell's
cheerful personality and good relations with students and classroom teachers.
12. Susan Lucy Havercamp, a Hibbing resident, was born on September 8,
1940. On July 17, 1962 she graduated from Bemidji State College with a
Bachelor of Science degree in elementary education. At that time she received
a Minnesota teaching certificate with a kindergarten endorsement. During the
two school years following graduation Havercamp taught kindergarten classes in
Duluth. For the next 14 years, Havercamp did not work and her Minnesota
teaching license expired.
13. In 1977 Havercamp and her recently retired husband moved to Hibbing.
At that time Havercamp took the steps necessary to be relicensed as an
elementary teacher: she took two human relations courses required of all
teachers, took one course on learning and motivation, and spent 20 hours
observing kindergarten and first grade classes as the District's Jefferson
Elementary School. In addition, after she was relicensed, she took a course
on audio-visual materials.
14. Havercamp's teaching license was renewed effective July 1978. Under
her license she is authorized to teach kindergarten through sixth grade.
Beginning with the 1979-80 school year Havercamp worked as a casual substitute
teacher for the District. She taught kindergarten through sixth grade,
including classes in the early childhood and special education program.
Havercamp continued working as a substitute teacher for the District through
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the 1986-87 school year when she found part-time employment as a kindergarten
teacher in a parochial school. She last worked for the District on October 1,
1986.
15. Havercamp never received any negative comments or criticisms
regarding her work for the District. On the contrary, all the feedback she
received was positive. Teachers and principals alike told her she was doing
an excellent job.
16. During the 1982-83 school year the District employed 8
paraprofessionals to teach in its Chapter I program. In addition to Lignell,
Smith and Jaksha, the District employed Cherye Carlstrom, Marcia Draskovich,
Timothy Johnson, Orpha Prince, and Linda Sibell. All except Prince were
certified elementary school teachers.
17. During the 1982-83 school year, the Hibbing Federation of Teachers
(HFT)1 filed a petition with the Bureau of Mediation Services to designate a
separate bargaining unit for the Chapter I paraprofessionals employed by the
District. The Hibbing Education Association (HEA) appeared to oppose the
separate certification contending that the paraprofessional should be included
within the teacher bargaining unit it represented. The paraprofessionals
adopted HEA's position. Following several hearings, the Director of the
Bureau of Mediation Services (BMS) issued a unit determination establishing a
separate bargaining unit for the paraprofessionals. HEA appealed the unit
determination to the Public Employment Relations Board (PERB). On September
15, 1983, PERB affirmed the BMS determination. HEA subsequently appealed that
determination to the Minnesota Court of Appeals.2
In a decision issued on April 4, 1984, the Court of Appeals reversed the unit
determination made by the Public Employment Relations Board and PERB
appealed. The Minnesota Supreme Court reversed the Court of Appeals in a
decision issued on June 21, 1985.3
IIt is not cl ear if the HFT was an associate on of the pa rap rof essiona Is only
or if it also represented other District employees.
2See, Hibbinq Education Association v. Public Employment Relations Board,
342 N.W.2d 355 (Minn.App. 1984) and Hibbing Education Association v. Public
Employment_Relations Board, 346 N.W.2d 389 (Minn.App. 1984).
3Hibbinq Education Association v. Public Emplovment Relations Board, 369
N.W.2d 527 (Minn. 1985).
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18. After the petition for unit determination was filed, District
officials, including the superintendent, Edward Eggers, were concerned about
the effects a decision including the Chapter I paraprofessionals in the
teachers bargaining unit would have upon the District's budget. At that time,
teacher salaries were two to three times higher than the salaries paid to
paraprofessionals. Therefore, if the District was ordered to provide
paraprofessionals with the same salary and other benefits available to
teachers, the District's budget would be adversely affected and it would be
required to reduce the number of paraprofessionals due to the limited amount
of Chapter I funds. In addition, Eggers was concerned that if the
paraprofessionals were added to the teacher's bargaining unit, they would
acquire tenure and seniority rights which were previously unavailable to
them. If they obtained seniority, their salaries would be increased further,
and they could "bump" regular classroom teachers; if they acquired tenure,
they would also have a right to continued employment regardless of the
availability of Chapter I funds. Because of the uncertainties surrounding the
outcome of the BMS proceedings, the District decided not to resume the Chapter
I program at the start of the 1983-84 school year.
19. Although none of the paraprofessionals employed during the 1982-83
school year received notice that they would be rehired for the 1983-84 school
year, their union representative advised them to report to work.
Consequently, they went to Walters' office as a group during the first week of
September 1983. Walters told them that there was no work at that time and
they left. Although the Chapter I program did not commence in September, most
of the paraprofessionals were hopeful that it would be resumed sometime during
the school year.
20. The status of the Chapter I program and the unit determination
petition were a big news item in Hibbing and the paraprofessionals (known by
then as the "Hibbing 8") were vocal participants in public discussions
regarding those matters.
21. Parents, teachers, school officials, and school board members were
all in favor of resuming the Chapter I program as soon as possible, and
ongoing negotiations between the Respondent and HEA occurred. In December
1983, Eggers advised the Hibbing school board (Board) that the District should
call a moratorium on the Chapter I program for the 1983-84 school year or
reinstate it using four Chapter I paraprofessionals and some aides. At that
time HEA was advocating the use of licensed teachers in the Chapter I
program. Eggers was concerned about that proposal because of its cost. In
addition, if teachers were to be employed, Eggers told the Board that the
District should advertise for the best-qualified people to get the "most
up-to-date trained teachers" available, referring specifically to computer
training. However, he noted that December is not the best time to look for
teachers. (Ex. 35).
22. Although PERB had determined that the paraprofessionals were not
"teachers" on September 15, 1983, an appeal had been taken to the Minnesota
Court of Appeals. Due to Eggers' concerns about the financial effects of a
court decision reaching a contrary conclusion, a decision was made not to have
a Chapter I program for the 1983-84 school year. On April 4, 1984 the
Minnesota Court of Appeals reversed PERB's decision and remanded the matter
back to PERB for a determination of the paraprofessionals' appropriate
bargaining unit considering the paraprofessionals actual job duties. The
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District did not appeal that decision and apparently decided that teachers
should be hired for the Chapter I program.
23. At a school board (Board) meeting on May 23, 1984, the Board adopted
a resolution authorizing the District's participation in the Chapter I program
for the 1984-85 school year and approved an application for Chapter I funds.
(Ex. 42). In addition, the District's administration proceeded with ongoing
negotiations with the HEA concerning the seniority, tenure, and salary that
would be paid to the Chapter I teachers hired for the 1984-85 school year.
24. After the Board decided to resume the Chapter I program for the
1984-85 school year, Eggers went ahead with his decision to consider persons
other than former paraprofessionals for those positions even though he was
satisfied with the paraprofessionals' prior job performance. Eggers announced
that since the individuals hired were required to be teachers and could end up
teaching in a regular classroom, the positions should be filled like all other
teaching positions. That is, by statewide recruitment. Consequently, notice
of the new Chapter I teaching positions was published and the vacancies were
listed in several placement offices.
25. In July and August 1984, Robert Parker, the director of elementary
education, interviewed approximately 28 teachers who had submitted employment
applications. Most of them had applied for a Chapter I position but some of
them had not. Two of the eight paraprofessionals in the Chapter I program
during the 1982-83 school year did not apply for the new Chapter I teaching
positions: Marcia Draskovich and Timothy Johnson. Orpha Prince, a former
Paraprofessional, applied for a position but she was ineligible because she
was not a licensed teacher. The other five previously employed
paraprofessionals all applied and were interviewed by Parker. Parker notified
each person who applied to telephone him for an interview, and except for the
former paraprofessionals, advised most of the applicants by letter to have
their colleges send him copies of their credentials. (Ex. 38). Notice of the
Chapter I elementary teaching positions was posted at the District's schools
on or about June 27, 1984. (Ex. 37).
26. At the time of their interviews, Carlstrom was 27, Sibell was 34,
Lignell was 35, Smith was 51, Jaksha was 54 and Havercamp was 43. Most of the
applicants for the Chapter I positions were in their twenties (15) or thirties
(9); two were in their forties and two were in their fifties.
27. Parker interviewed most of the 28 applicants between July 17 and
August 13, 1984. (Dist. Ex. A). His interviews with Linda Sibell and the
Charging Parties were informal and lasted 20 minutes or less. They were given
a chance to review the new Chapter I job description, ask questions about the
position, and ask any other questions or make any other comments they felt
were appropriate. None of them were asked to supplement their applications or
submit recommendations from persons they had listed as references. During the
interviews Parker had a note pad, but he took few notes, and he did not have
their personnel files available or use any forms or checklists.
28. Eggers decided that the process previously followed in hiring
elementary teachers should be altered in hiring the Chapter I teachers. In
the past, Eggers had always relied on Parker's recommendations in filling
elementary teaching positions and Chapter I positions because Parker was the
director of elementary education. Although he had always been satisfied with
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Parker's selections, Eggers concluded, sometime after the Chapter I interviews
were completed, that the process should be "formalized" by scoring the
applicants on the basis of 16 criteria and selecting the four persons with the
highest scores. He felt that formalization was needed to select the best
qualified persons -- especially because there were fewer vacancies than former
paraprofessionals.
29. Eggers gave Parker the evaluation forms and asked Parker to complete
one for each of the applicants he had previously interviewed. The evaluation
form lists 16 criteria and contains a matrix on which each of those criteria
can be scored from one to five. However, a numerical score was not required
for each criterion. Any criterion could be scored as "inapplicable" or
"N/A". The 16 criteria are as follows:
1. Academic preparation (basic & current)
2. Scholarship (GPA)
3. Educational Experience (recommendations)
4. Extra-curricular strengths
5. Special interests
6. Oral & written skills
7. Instructional competencies (methods, planning, knowledge of
materials)
8. Community involvement
9. Poise, culture, speech
10. Personality
11, Personal appearance
12. Cooperation & professional spirit
13. Sympathetic understanding of children
14. Ability to instruct & control
15. Ability to accept supervision
16. Professional growth.
30. After Parker received the evaluation forms from Eggers, he rated each
of the applicants by placing a check mark in one of the six boxes for each of
the 16 criteria. His determinations were based on his interviews, the notes
he took, his memory, the applications and credentials submitted, and other
information in the school's personnel file, as well as his own knowledge about
the applicants. After Parker completed the evaluation forms, he submitted
them to Eggers. Eggers calculated a composite score for each applicant using
weightings he had devised for each criterion and an adjustment factor.
Parker's score for each criterion was multiplied by the weight assigned to
it. The weighted scores of each applicant were totaled and the sum was
divided by the number of criteria that were given a score. The totals were
then multiplied by an adjustment factor to get the final scores (weighted
average scores). The adjustment factor was based on the applicant's teaching
experience. If the applicant had no prior teaching experience, the
applicant's score was multiplied by a factor of .9. If the teacher had prior
experience, but not experience in the Chapter I area, the applicant's score
was not adjusted. If the applicant had prior Chapter I experience, the
applicant's score was multiplied by a factor of 1.1. Based upon the final
scores computed by Eggers, a priority sheet was established.
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31. Based on Parker's evaluations, the applicants' scores were as
follows:
NAME AVERAGE SCORE AGE
Meisner, W. 4.625 24
Meisner, J. 4.533 26
Koefod 4.333 22
Jeseritz 4.266 32
Thill 4.066 23
Nordlund 4.066 23
Zubich 3.875 22
Hilton 3.8b6 23
Brandstrom 3.857 34
Ridge 3.800 26
Katonias 3.687 28
O'Neil 3.666 21
Bordwell 3.666 22
Proctor 3.625 37
Adam 3.563 32
Gustafson 3.400 37
Ferguson 3.400 45
Walters 3.375 38
Smith, Joy 3.375 51
Sibell 3.267 34
Havercamp 3.187 43
Lignell 3.125 35
Carlstrom 3.063 27
Smith, A. 3.062 25
Jaksha 3.000 54
Amic 2.875 36
Prince -0- 50
After Eggers weighted the scores and adjusted them for prior teaching
experience, the available applicants with the highest scores were:
NAME SCORE
Pamela Koefod 5.99
Brenda Nordlund 5.72
Diane Hilton 5.69
Linda Sibell 5.64
Joy Smith 5.53
Lois Ferguson 5.464
4Actually, Nordlund's score was 5.54 and Sibell's was 5.68.
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32. At a Board meeting on September 5, 1984, the Board approved changes
in the Master Agreement with HEA. The changes dealt with Chapter I teachers.
The contractual language approved by the Board limited the Chapter I teachers'
salaries to step zero of the teacher salary range, recognized that they were
tenured, but limited their seniority to the Chapter I area. Under the
language changes approved, Chapter I teachers would not be able to bump
regular classroom teachers and would not be paid at the same rate. However,
they would receive the same fringe benefits teachers received. After these
language changes were approved by the Board, Eggers made his recommendations
for the Chapter I teaching positions for the 1984-85 school year. He
recommended Pamela Koefod, Brenda Nordlund, Diane Hilton and Linda Sibell.
These were the available applicants with the highest scores. The Chairman of
the Board, Vernon Wenberg, was suprised by Eggers' recommendations. He had
heard that Laura Lignell would be recommended. The Board meeting was recessed
while Board members reviewed the credentials of the finalists recommended by
Eggers. When the meeting resumed, the Board voted to approve Eggers'
recommendations. Wenberg was the lone dissenter. He stated he was not sure
the most qualified persons had been selected.
33. The District also hired a kindergarten teacher for the 1984-85 school
year. Eggers recommended Jane Dostal, age 22, for that position and she was
hired. Dostal graduated from Bemidji State University in May 1984. Her major
was elementary education and her minor was early childhood education. She had
no teaching experience other than that required for her degree (student
teaching). Havercamp had notified the District of her interest in a
kindergarten position for the 1984-85 school year but was never advised that a
kindergarten vacancy existed or specifically interviewed for a kindergarten
position
34. Linda Sibell was born on February 8, 1950 and in the summer of 1984
was 34 years old. Sibell graduated from St. Cloud State College in 1972 with
a Bachelor of Science degree in elementary education with an English
concentration. Following graduation Sibell, like Lignell, also completed 15
credits toward a Master's degree in special education by the summer of 1984.
In addition, during the 1982-83 school year she took a computer course.
Commencing with the 1972-73 school year, Sibell worked for the Respondent for
three years as a substitute elementary teacher. During the 1976-77 and
1978-79 school years Sibell worked as a long-term substitute teacher for the
Respondent. Thereafter beginning with the 1979-80 school year Sibell worked
for the District as a Chapter I paraprofessional for four consecutive school
years.
35. Hilton, Nordlund and Koefod were younger and had less teaching
experienced than Sibell or any of the Charging Parties. Hilton was born on
May 3, 1961 and was 23 years old in the summer of 1984. She graduated from
the University of Minnesota Duluth on May 21, 1983 with a degree in elementary
education. Following graduation she worked two months as a substitute
elementary teacher in California and worked one month as a kindergarten
teacher in a private school.
36. Nordlund was born on February 10, 1961 and was 23 years old in the
summer of 1984. She graduated from Concordia College in Moorhead, Minnesota
in May 1983 with a degree in elementary education. Following graduation she
worked as a substitute elementary school teacher for seven months and she
worked two months as a teacher in a Chapter I and a gifted student program.
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At the time of her application she was working as a playground supervisor and
was licensed to teach first through sixth grades.
37. Koefod was born on July 10, 1962 and was 22 years old in the summer
of 1984. She graduated from Concordia College in Moorhead, Minnesota with a
degree in elementary education in May 1984 and, apart from her college course
work, she had no teaching experience. (Ex. 9). At the time of her
application Koefod was licensed to teach kindergarten through sixth grades.
Koefod, like Nordlund, had very good college grades; Koefod's grade point
average was 3.7b, Nordlund's was 3.41.
38. On Thursday, September 6, 1984 Lignell, Sibell and union
representative Ron Carlstrom met with Parker to discuss the manner in which
the District had decided which candidates to recommend for the Chapter I
teaching positions. At that time Parker showed them a sample of the
evaluation form he had completed for each candidate following the interviews
and told them that each candidate was scored using the criteria on the form.
They asked Parker how he obtained the information necessary to rate the
candidates with respect to the 16 criteria when he did not ask questions about
those criteria during the interviews. Parker did not explain how he had
obtained the information necessary to evaluate the candidates for all criteria
on the evaluation form. He told them he "just knew."
39. On Friday, September 7 the Charging Parties, Sibell and two other
former Chapter I paraprofessionals obtained copies of their completed
evaluation forms from the District's attorney. The following Monday,
September 10, Lignell and Sibell spoke to Parker again about their
evaluations. They wanted to find out if the District had any documents
relating to their performance as Chapter I paraprofessionals that could have
been used to rank them. At that time, Parker told them that he did not have
any files regarding them and suggested that Walters might have some. The same
day Lignell and Sibell went to see Walters and asked him if he had any files
that reflected their performance as Chapter I paraprofessionals. Walters told
them that he had no such files. Walters also told them that he and
Drazenovich had developed the evaluation form after Parker's interviews. When
they asked him how they could be scored on criteria that were unknown when the
interviews were conducted, he told them that he knew it didn't look good but
if the District changed its mind now "we will look like incompetent asses."
40. On September 14 Jaksha's husband spoke to Dr. Peter Lucia, a school
board member, about the Board's hiring decision. When Jaksha asked Lucia why
the Board had hired new people instead of individuals who had worked in the
Chapter I program before, Lucia told him that the administration wanted some
"fresh blood" in the system.
41. Sibell and Lignell also talked to school board member Stephen Raukar
about the Board's decision. They told Raukar that the criteria on which the
candidates were evaluated were developed after the interviews. In addition,
Lignell and Sibell developed a written summary of their relative
qualifications and experience and delivered those to most of the Board
members. At the Board meeting held on Wednesday, September 19, 1984, Director
Raukar asked that the minutes of the September 5, 1984 meeting be amended to
change his vote on the motion to appoint the four Chapter I teachers
recommended by Eggers from a "yes" to a "no". He did not explain the reasons
for his decision and Raukar's motion that the Board reconsider its prior
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approval of Eggers' recommendations was voted down.
42. The District historically had a policy of considering the age of
teacher applicants, but not Chapter I paraprofessionals, in making its hiring
decisions in order to have an age "flow". Also, since the District considered
recent teaching experience in determining a newly hired teacher's starting
salary, the District attempted to hire teachers with less experience to reduce
its salary costs. Its salary costs were high because it had a mature,
experienced teaching staff.
43. In the summer of 1979, Havercamp applied to the District for a
kindergarten position. Following an interview, Parker noted on her interview
summary that Havercamp "appears to be a strong candidate." (Dept. ex. 14, p.
15). Nonetheless, Havercamp was not selected for either of two kindergarten
positions the District filled for the 1979-80 school year. After she learned
that she was not one of the successful applicants she telephoned one of the
references she had included on her application form and learned that he had
not been contacted by the District. Consequently, she contacted Eggers to
find out why her references had not been checked. At that time Eggers told
her: "[M]aybe Mr. Parker was looking for fresh graduates." When Havercamp
asked why she hadn't been told that before she went to the trouble of
applying, Eggers told her that it was always possible that no fresh graduates
were available. When Havercamp told Eggers that she did not think she was
treated fairly, Eggers promised to ask Parker what criteria had been used and
get back in touch with her. A few days later, when Havercamp called Eggers
about the matter, Eggers told her that Parker had been looking for recent
graduates to fill the kindergarten positions and that the District was looking
for an age "flow" in the school system. Havercamp still believed that her
references should have been checked and after talking to her husband they
decided to speak to Parker about the matter because Parker's comments during
her interview led Havercamp to believe his refusal to hire her might have
something to do with her husband. Parker denied that his hiring decision had
anything to do with her age or her husband. Since her references had not been
checked, Havercamp felt the District did not have the best interests of its
students in mind. Consequently, after speaking with Parker, Havercamp and her
husband met with Eggers and discussed the matter further. During the meeting,
Eggers told Havercamp and her husband that Parker uses three criteria in
selecting teachers: cost, age and qualifications. Eggers said that the
District tries to balance the age of its staff and if a candidate qualifies
with respect to age and salary costs (experience), the candidates
qualifications are checked. Eggers also said that the District likes to get
"young blood" in the school system to add more life to its meetings and other
functions.
44. Following a Board meeting in the summer of 1984, while discussing the
District's Chapter I program, Vernon Wenberg, a school board member, told
Lignell that the District was concerned with the age of its Chapter I teachers
and that it did not want the children to have a "grandma" figure for a teacher
and needed, instead, a wide range of ages.
45. The duties of the Chapter I paraprofessionals prior to the 1983-84
school year were substantially equivalent to the duties of Chapter I teachers
from and after the 1984-85 school year. Commencing with the 1984-85 school
year, Chapter I teachers have been paid the following salaries in the
following school years:
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SCHOOL YEAR AMOUNT
1984-85 $14,630
1985-86 $15,632
1986-87 $16,438
1987-88 $16,930
1988-89 $16,930
46. During the 1984-85 school year, Smith worked as a substitute
elementary teacher (K-6) for the Respondent and a private elementary school
earning $891.
47. In the spring of 1985 Smith again applied for a Chapter I teaching
position. After an interview by a panel of seven administrators, Smith was
hired for the vacancy. She began working for the District at the commencement
of the 1985-86 school year and has worked for them since that time. Since she
returned to work Smith has earned at least as much as she would have earned if
she had been hired for the 1984-85 school year in the Chapter I program.
48. The interview process for hiring Chapter I teachers for the 1985-8b
school year was changed after Parker and Eggers retired on January 1, 1985.
The new superintendent implemented a scientifically tested interview and
evaluation procedure developed by the University of Nebraska. The evaluation
forms previously used by Eggers were never used again.
49. During the 1984-85 school year, Lignell worked as a substitute
teacher for the Respondent in another public school district earning
$4,292.50. Commencing with the 1985-86 school year, Lignell obtained
full-time employment as a special education teacher for a special education
cooperative. Since that time, she has earned more than she would have earned
as a Chapter I teacher for the District.
50. During the 1984-85 school year, Jaksha worked as a substitute teacher
for the District and earned $1,738. Jaksha applied to the District for a
Chapter I teaching position in the spring of 1985; however, the position was
given to Smith. Thereafter, Jaksha stopped looking for work and let her
teaching license expire.
51. During the 1984-85 school year, Havercamp worked for the District as
a substitute elementary school teacher earning $2,762. She was an
unsuccessful applicant for a full-time position for the District for the
1985-86 school year. Consequently, she continued to work as a substitute that
year. During the 1986-87 and 1987-88 school years, Havercamp worked as a
part-time kindergarten teacher at a private school earning $4,895 (1986-87)
and $6,935 (1987-88) respectively. Commencing with the 1988-89 school year,
Havercamp became a full-time kindergarten teacher at a private school. Her
salary for the year was $5,624.
52. All the Charging Parties were emotionally traumatized by the
District's failure to hire them as Chapter I teachers for the 1984-85 school
year. Ms. Smith was temporarily depressed. She had feelings of
worthlessness, lost most of her interests, and "tuned everyone out." Her
rejection became a focus of most family discussions. Jaksha had similar
feelings of worthlessness. She was embarrassed about her rejection and felt
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like her self-esteem had been completely wiped out. Following her
unsuccessful attempt for a Chapter I teaching position for the 1985-86 school
year, Jaksha was devastated. She did not believe the District would hire her
and felt like no one would give her a recommendation for other work. She did
not seek other work and she permitted her teaching license to expire.
Havercamp felt like there was something wrong with her and had feelings of
diminished self-worth. Lignell felt like someone had died. None of the
Charging Parties sought medical attention for their depression, but their
rejection adversely affected their family life and their self-esteem.
Based on the foregoing Findings of Fact, and for the reasons set forth in
the attached Memorandum, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge has jurisdiction herein and authority to
take the action ordered pursuant to Minn. Stat. 3b3.071 and 14.50 (1988).
2. The notice of hearing was proper and all relevant substantive and
procedural requirements of law and rule have been fulfilled.
3. That the Respondent is an employer for purposes of Minn. Stat.
363.01, subd. 15 (1984).
4. That the Respondent refused to hire the Charging Parties for Chapter
I teaching vacancies in the 1984-85 school year because of their age in
violation of Minn. Stat. 363.03, subd. 1(2)(a) (1984).
5. The Charging Parties experienced mental anguish and suffering as a
result of the Respondent's discriminatory conduct, and under Minn. Stat.
363.071, subd. 2 (1984), they are entitled to compensation for that mental
anguish and suffering in the following amounts:
Smith $3,000.00
Lignell $3,000.00
Havercamp $5,000.00
Jaksha $10,000.00
6. Minn. Stat. sec. 363.071, subd. 2 requires an award of a civil penalty
to the State when an employer violates the provisions of the Human Rights
Act. Taking into account the seriousness and extent of the violation, the
public harm occasioned by it, the financial resources of the Respondent, and
whether the violation was intentional, the Respondent should pay a civil
penalty to the State in the amount of $10,000.00.
7. Under Minn. Stat. 363.071, subd. 2 and the standards in Minn. Stat.
549.20, punitive damages may be awarded where there is clear and convincing
evidence of the acts of the employer's agents show a willful indifference to
the rights of others. Each of the Charging Parties except Jaksha are entitled
to an award of punitive damages in the amount of $2,000.00; Jaksha is entitled
to $3,000.00.
8. Minn. Stat. 363.071, subd. 2 permits an award of back pay to
compensate victims of discrimination for the compensation they would have
earned had they been hired. In this case the Charging Parties are entitled to
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compensatory damages in the following amounts:
Smith $13,739.00
Lignell $10,337.00
Jaksha $28,524.00
Havercamp $53,948.00
9. Minn. Stat. sec. 3b3.071 authorizes an award of compensatory damages up
to three times the amount of the compensatory damage actually incurred but in
this case, compensatory damages should be limited to those actually sustained
and should not include interest.
10. The Respondent has failed to establish a bona fide occupational
qualification for refusing to hire the Charging Parties because of their age.
11. The Respondent should be ordered to cease and desist from considering
the age of job applicants and rejecting those that are older.
12. The Complainant's prima facie case of discrimination was established
by a preponderance of the evidence.
13. The Respondent articulated a legitimate, nondiscriminatory reason for
rejecting the Charging Parties' applications for employment.
14. The Complainant established by a preponderance of the evidence that
the employer's articulated reasons for rejecting the Charging Parties was a
pretext and that it is not worthy of belief.
15. The Respondent failed to meet its burden of showing that any of the
Charging Parties but Jaksha failed to mitigate their damages.
16. The Respondent should not be ordered to hire an unlicensed person in
a teaching position.
Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
ORDER
IT IS HEREBY ORDERED:
(1) The Respondent shall cease and desist from considering the age of job
applicants for teaching positions and rejecting older applicants
because they are older.
(2) The Respondent shall pay a civil penalty of $10,000.00 to the general
fund of the State of Minnesota. The payment shall be delivered to
the Chief Administrative Law Judge for submission to the general
fund .
(3) The Respondent shall pay Joy Smith $18,739.00, being $3,000.00 for
mental anguish and suffering; $2,000.00 for punitive damages; and
$13,739.00 for compensatory damages.
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(4) The Respondent shall pay Laura Lignell $15,337.00 being $3,000.00 for
mental anguish and suffering; $2,000.00 for punitive damages; and
$10,337.00 for compensatory damages.
(5) The Respondent shall pay Susan Havercamp $60,948.00, being $5,000.00
for mental anguish and suffering; $2,000.00 for punitive damages; and
$53,948.00 for compensatory damages.
(6) The Respondent shall pay Ilona Jaksha $41,524.00, being $10,000.00
for mental anguish and suffering; $3,000.00 for punitive damages; and
$28,524.00 for compensatory damages.
(7) All payments ordered shall be made with thirty (30) calendar days of
the date of this Order.
Dated this day of August, 1989.
JON L. LUNDE
Administrative Law Judge
NOTICE
Pursuant to Minn. Stat. sec. 363.071, subd. 2, this Order is the final
decision in this case and under Minn. Stat. 363.072, the Commissioner of the
Department of Human Rights or any other person aggrieved by this decision may
seek judicial review pursuant to Minn. Stat. 14.63 through 14.69.
Reported: Tape Recorded, Transcript Prepared.
MEMORANDUM
The Complaint in this matter charges the Respondent with a violation of
Minn. Stat. 363.03, subd. 1(2)(a) (1984). In pertinent part, the statute
states that except when based on a bona fide occupational qualification it is
an unfair employment practice:
For an employer, because of age
(a) to refuse to hire or to maintain a system of
employment which unreasonably excludes a person seeking
employment * * *
For purposes of the statute, the word "age" protects all individuals over the
age of majority when unfair employment or educational practices are involved.
Minn. Stat. 363.01, subd. 28 (1984).
As noted by the Complainant, in analyzing evidence in a disparate
treatment case under the Minnesota Human Rights Act (HRA), the three-step
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process articulated by the United States Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) must be
followed when a Complainant's case consists of circumstantial evidence. See,
Danz v. Jones, 263 N.W.2d 395, 399-400 (Minn. 1978; Rademacher v. FMC Corp.,
431 N.W.2d 879 (Minn.Ct.App. 1988). Under McDonnell Douglas a complainant
must first present a prima facie case of discrimination. If a prima facie
case is established the burden of producing evidence shifts to the respondent
to articulate a legitimate nondiscriminatory reason for the action it took.
If the respondent meets its burden of articulating a legitimate
nondiscriminatory reason for its action, the complainant may present evidence
showing that the proffered reason for the action are a mere pretext for
discrimination. At all times, the ultimate burden of persuasion rests with
the complainant. See, Lamb v. Villaqe of Bagley, 310 N.W.2d 508, 510 (Minn.
1981).
When a complainant can establish direct rather than circumstantial
evidence of discrimination, the McDonnell Douglas format is not followed.
Instead, once direct evidence of a discriminatory motive is established, the
burden of proof shifts to the employer to show that its action was not
discriminatory. Lee v. Russell County Board of Education, 684 F.2d 769,
774-775 and n.6 (1lth Cir. 1982); Castle v. Sanqamo Weston, Inc., 41 F.E.P.
962, 975-976 (D.Fla. 1986); McDermott v. Lehman, 36 F.E.P. 531 (D.Maine
1984).
Statements of an employer's officers and employees may be sufficient to
establish direct evidence of discrimination shifting the burden of proof --
not merely the burden of going forward with an explanation -- to the
employer. Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986);
State,_by_Cooper V. Hennepin County, N.W.2d ___ (Minn. 1989), filed June
2, 1989, C9-87-2434. However, to constitute direct evidence of
discrimination, the discriminatory remarks must be sufficiently "direct."
Hence, they must be connected with the adverse action taken and must come from
someone directly responsible for the employment action. Castle v. Sangamo
Weston, Inc., supra, 41 F.E.P. at 978; EEOC v. United States Steel, 42 F.E.P.
1680 (D.Pa. 1986). If the statements do not have the requisite nexus to the
alleged discriminatory act or not sufficiently direct, they may only be
considered as circumstantial evidence of a discriminatory motive. Id
Complainant argues that it has presented direct evidence of discrimination
that should shift the burden of proof in this case. The direct evidence
relied upon apparently consists of the statements Eggers made to Havercamp in
1979, Eggers' remarks regarding the unit determination litigation, and other
"environmental" statements of age bias. These arguments deserve careful
scrutiny because they could affect the outcome in a close case.
Havercamp was a credible witness. She testified about her conversations
with Eggers in 1979 when she was an unsuccessful applicant for a kindergarten
position. At that time Eggers told her that she was not hired because Parker
wanted a "fresh graduate." Eggers also told Havercamp that the District
wanted a "flow" in the ages of its teachers to avoid a gap when the older
teachers retire and that they like to get some "young blood" in the school
system to add more life to school functions. Eggers did not deny Havercamp's
testimony. Moreover, Vernon Wenberg, a school board member, testified to the
existence of the same policy Eggers described. Stephen Rauker, another school
board member, testified that he had discussions with Eggers concerning the
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need to get a balance of teachers across the salary schedule to avoid high
salary costs.
Eggers' 1979 comments to Havercamp are not sufficiently direct to
establish a discriminatory motive with respect to the 1984 hiring decisions.
Although there is evidence of an ongoing policy of considering age, that
policy apparently had not been followed in hiring Chapter I personnel.
Perhaps, that was due to the fact that Chapter I salaries were not adjusted
for seniority. Under the agreement reached with HEA in 1984, Chapter I
teacher salaries were not seniority-based. However, since the agreement could
be affected by a final court decision, there was a definite risk that they
would become seniority-based. Eggers' statements do not address such a
situation directly. Moreover, Eggers' statements were made in the context of
hiring new personnel, not in the context of the relatively unique situation
District administrators faced in 1984 when dealing with several previously
employed persons. For these reasons it is concluded that Eggers' statements
to Havercamp do not establish direct evidence of discrimination shifting the
burden of proof.
In addition, Complainant argues that Eggers' explanation for the decision
to terminate the Chapter I program during the 1983-84 school year constitutes
direct evidence of discrimination sufficient to shift the burden of proof.
Eggers testified that the Chapter I program was suspended because he feared
that the courts might ultimately determine that the paraprofessionals were
teachers. In such a case, the paraprofessionals would be entitled to the same
salaries paid to teachers, acquire tenure, and have retroactive seniority
enabling them to bump regular classroom teachers. Eggers stated that this was
his "worst case" scenario and that he suspended the Chapter I program because
he didn't want any of the former paraprofessionals in the District's
employment if the courts were to find that they were teachers that should be
included in the teachers' bargaining unit. In the spring of 1984 it appeared
that Eggers "worst case" might come true because the Court of Appeals had
reversed PERB's determination that the paraprofessionals should be in a
separate bargaining unit.
It would be difficult to characterize Eggers' remarks concerning the
reasons for suspending Chapter I program during the 1983-84 school year as
direct evidence of discrimination with respect to the 1984 hiring decision.
He merely stated that the District could not afford to retain eight tenured
paraprofessionals at a teacher's salary and that none of them, regardless of
age and experience, should be rehired until the District had time to decide
how to proceed. His comments cannot be translated to directly state that no
paraprofessionals will be reemployed if there is a chance that they will
obtain seniority and be included in the teacher's bargaining unit. Moreover,
Eggers' remarks regarding the suspension of the program in 1983 do not have
the requisite nexus to the reemployment decisions made in 1984. The District
was clearly in a different position in the summer of 1984 than it was in the
fall of 1983. It had succeeded in removing eight paraprofessionals and had
decided to rehire only four persons in that position. Its Chapter I budget
covered the salaries of those persons at step zero of the teachers' salary
scale . It did not have to worry about paying the salary of eight persons.
Moreover, an agreement was being negotiated with HEA which dealt with
seniority, tenure and salary issues. The terms of the agreement that was
ultimately negotiated alleviated Eggers' fears. Although those "fears" were
not eliminated, the extent to which those fears impacted the hiring decision
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in 1984 is clearly circumstantial rather than direct.
In December 1983, Eggers told the Board that if teachers were to be hired
to fill the Chapter I positions, the District should hire the most qualified
and up-to-date trained teachers available. His remarks suggest that
up-to-date trained teachers are somehow more qualified than teachers who
received their degrees at various times in the past. There is an obvious
linkage between the date a person graduates from college and that person's
age. Recent graduates will, for the most part, be younger than persons who
graduated 10, 15 or 20 years earlier. Hence, hiring decisions which prefer
recent graduates solely because of notions regarding the quality of their
training have a discriminatory impact and constitute the kind of stereotyping
the Human Rights Act was designed to prevent in the absence of the existence
of a bona fide occupational qualification. In spite of the remark Eggers made
regarding up-to-date training, the Administrative Law Judge is not persuaded
that his isolated remark is sufficient to establish direct evidence of
discrimination.
The record shows that there were other "environmental" statements
regarding the age and maturity of the District's staff. In addition, there is
evidence that Board member Wenberg expressed concerns about hiring older women
in the Chapter I program because students might have a "grandma" image and
another Board member stated that many of the paraprofessionals were not
rehired because the administration wanted some "fresh blood" in the system.
These remarks do not constitute direct evidence of discrimination. Statements
regarding the maturity (age) of the District's teaching staff made during
budgetary meetings is not evidence of discrimination. Those kinds of
statements merely explain high salary costs. Wenberg's "grandma" statement
while entitled to some weight, is inconclusive and indirect. Likewise,
statements regarding the administration's desire to get "fresh blood" in the
Chapter I program is also inconclusive. The words "fresh blood" can refer to
different persons rather than young persons.
For all these reasons, it is concluded that the statements relied upon the
Complainant are not sufficient to establish a discriminatory motive and shift
the burden of proof to the Respondent. Consequently, the evidence presented
must be considered along McDonnell Douglas lines.
In McDonnell Douglas the court stated that a prima facie case of a
discriminatory refusal to hire may be met with the following showing:
1. That the charging party is a protected class member,
2. that the charging party applied for and was qualified for a
job for which the employer was seeking applicants,
3. that despite the charging party's qualifications, the
charging party was rejected, and
4. that after the charging party's rejection the position
remained open and the employer continued to seek applicants
from persons of the complainant's qualifications.
When an employer selects from a pool of applicants rather from applicants
considered in seriatim, the fourth element of the traditional McDonnell
Douglas test cannot be met because the rejection of a charging party occurs
simultaneously with the selection of the successful applicant. Hence, the
charging party cannot show that the position remained open or that the
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employer continued to seek applicants with the plaintiff's qualifications. 2
A. Larson and L. Larson, Employment Discrimination 50.31(f) at p. 10-36.
Since the fourth prong of the McDonnell Douglas test does not work when an
employer is hiring from a "pool" of applicants, the courts have usually dealt
with this problem by replacing the fourth element of the McDonnell Douglas
formulation with that articulated in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In that case
the Court held that the plaintiff 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. Accord: Lucas v. Dole, 835 F.2d 532, 45 F.E.P.
971 (4th Cir. 1987); Hill v. Seaboard Coastline R.R., 642 F.Supp. 319, 42
F.E.P. 673 (M.D.Fla. 1986).5
The Complainant has clearly established the first three components of a
prima facie case with respect to each of the Charging Parties. Each of the
Charging Parties belongs to a class of persons over 18 years of age, and each
of them applied and was interviewed for a Chapter I teaching position for the
1984-85 school year. Also, Complainant established that each of the Charging
Parties were qualified for that position. All of them were licensed
elementary school teachers who Parker admitted were qualified for a Chapter I
position. Their licensure alone qualified them for the position. Even if
that were not true, Lignell, Smith and Jaksha all had prior Chapter I teaching
experience and all had performed the duties of a Chapter I teacher in a
satisfactory manner. Although Havercamp had never worked as a Chapter I
paraprofessional, she was an experienced and licensed elementary school
teacher who had done a satisfactory job as a substitute teacher for the
District. The fact that the District hired its paraprofessionals from the
substitute teaching list, coupled with the fact that Havercamp had more
teaching experience than three of the individuals who were hired as Chapter I
teachers is persuasive evidence that she also was qualified for the position.
In fact, in 1979, Parker had evaluated her as a strong candidate for a regular
teaching position. Her credentials support his conclusions. The Charging
Parties also established that they were not hired to fill any of the vacancies
that existed in spite of their qualifications. Hence, the first three
elements of the Complainant's prima facie case clearly have been established.
5However, some courts have held that the fourth element can be satisfied if
the position remained open after a qualified person applied and that another
person (e.g., younger) was ultimately selected. Williams v. Edward Apeffels
Coffee Co., 41 F.E.P. 396, 398 (9th Cir. 1986); Gelof v. Papineau, 42 F.E.P.
1299, 1303 (D.Del. 1986).
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Under Burdine the Complainant must also show that the Respondent's
rejection of the Charging Parties was made under circumstances which give rise
to an inference of unlawful discrimination. This burden cannot be met by only
showing that the charging parties were not hired. See, Autrv v. North
Carolina Dept of Human Resources, 820 F.2d 1384, 44 F.E.P. 169, 171 (4th Cir.
1987); Holmes v. Bevilacqua, 774 F.2d 636, 38 F.E.P. 1831 (4th Cir. 1985),
appeal after remand, 794 F.2d 142, 41 F.E.P. 43 (1986). If the fourth prong
could be met by merely showing that a qualified class member was not selected,
any of the unsuccessful applicants for the Chapter I teaching position could
establish a primp facie case of discrimination. That simply is not enough.
Holmes v. Bevilacqua, supra. This problem was recognized in Kaster v.
Independent School District No. 625, 284 N.W.2d 362, 365 (Minn. 1979) where
the court implicitly used the same test later adopted by the United States
Supreme Court in Burdine. In Kaster the court considered a school district's
failure to promote a qualified protected class member choosing, instead, other
qualified persons who were in a pool of applicants. The court cautioned that
mere rejection of a qualified protected class member should not, without more,
be sufficient to cause the burden of producing evidence to shift to the
employer to explain its employment decision, and it examined the record for
evidence supporting an inference of discrimination. In determining whether
the circumstances of the Charging Parties' rejection raise an inference of
unlawful discrimination requiring explanation by the Respondent, it is
necessary to separately consider the charges of those Charging Parties who
were previously employed as Chapter I paraprofessionals and the charge filed
by Havercamp who had not been so employed.
Smith, Jaksha and Lignell had each taught in the school's Chapter I
program prior to the 1983-84 school year and performed their job duties in a
satisfactory manner. Following a one-year suspension in the Chapter I
program, the District didn't simply rehire from the ranks of its former
paraprofessionals as it had done before. Although the new Chapter I positions
were to be filled by teachers, rather than paraprofessionals, the duties and
responsibilities of the new positions were essentially the same as the duties
and responsibilities of the paraprofessionals had been. Moreover, the manner
of evaluating the candidates was changed. Parker's power to make
recommendations based on his interviews was formalized and he was required to
evaluate the candidates using 16 subjective criteria which were weighted and
adjusted by Eggers. After Eggers computed the applicant's scores, he
recommended, and the District hired, four younger persons. Only one of them
had any significant Chapter I teaching experience. The other three, being
recent graduates, had little or no teaching experience of any kind. The
record also shows that the Respondent's application forms require each
applicant to list her age and date of birth. When teachers were interviewed
-- at least in 1979 -- the teacher interview summaries prepared by Parker
prominently listed the applicant's age. (Dept. Ex. 14, p. 15). Employer
documents that refer to an applicant's age can be considered as circumstantial
evidence of a discriminatory motive. Herman v. National Broadcasting Company
35 F.E.P. 1653 (7th Cir. 1984). All these facts, coupled with Eggers'
age-related statements, are sufficient to raise an inference of discrimination
with respect to Lignell, Smith and Jaksha.
The Administrative Law Judge is also persuaded that the Complainant has
established a prima facie showing of a discriminatory motive with respect to
Havercamp. As is already been noted, in 1979 Eggers told Havercamp that she
was not hired as a kindergarten teacher because the District wanted a "fresh
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graduate." He also told her, at that time, that the District has a policy of
considering an applicant's age in order to maintain a "age flow" in its
teacher corps. Although these statements were made five years before the
hiring decision in question here, there is ample evidence in the record to
establish that the policy Eggers mentioned continued in effect in later years
due to the age (maturity) of its teaching staff. Also, there is evidence that
Eggers wanted "up-to-date trained" teachers. In addition, there is evidence
that the District did not want to employ Havercamp, in spite of her
qualifications, in favor of younger persons. In 1984 Havercamp had indicated
an interest in a kindergarten position. For the 1984-85 school year the
District hired a kindergarten teacher. However, Havercamp was never informed
of the opening or specifically interviewed for it and the position was given
to a younger woman. On the basis of these factors, it is concluded that
Havercamp has also raised an inference of discrimination that the Respondent
should explain.
Since the Complainant has established a prima facie showing of
discrimination with respect to each of the Charging Parties, it is necessary
to consider the Respondent's legitimate, nondiscriminatory reasons for its
actions. The explanation must be sufficient to justify a judgment for the
Defendant. Burdine, 450 U.S. at 255. At this stage of analysis, it is
necessary to "look for evidence presented by the employer that its actions
related to some legitimate business purpose." Sigurdson, supra at 720.
Complainant argues that the legitimate nondiscriminatory reason for the
Respondent's failure to hire the Charging Parties was its concern for the
potential effect of the unit determination litigation pending at that time.
Complainant relies on Eggers' testimony to support that argument. See, T.
p. 991. However, Complainant's characterization misconstrues Eggers'
testimony. The thrust of Eggers' testimony was that the change in the hiring
process had something to do with the litigation. Clearly it did. The
litigation caused the suspension of the Chapter I program during the 1983-84
school year, led to a reduction in the number of Chapter I employees, led to a
decision to use teachers rather than paraprofessionals in the Chapter I
program and resulted in salary increases, limited seniority, tenure rights and
other benefits for Chapter I personnel. Moreover, it led to a decision to
recruit Chapter I personnel from outside the Hibbing community.
It is clear from the record that the legitimate nondiscriminatory reason
articulated by the Respondent's witnesses is that the Charging Parties were
not hired because they received lower scores on the evaluations: i.e., that
they were determined to be less desirable employees than the four persons
selected. Respondent presented evidence that since teachers were being
recruited, and since only four, rather than eight Chapter I teachers would be
employed, Eggers determined that the evaluation process should be
"formalized." To that end, Respondent presented testimony that two elementary
school principals - Drazenovich and Walters -- prepared an evaluation form
containing 16 criteria at Eggers' direction. The form was based on some
college course materials and the evaluation form Parker previously used (see
Ex. 14, p. 15, which was sometimes erroneously referred to as Parker's
"notes"). The Respondent also presented evidence that this evaluation form
was given to Parker before he began interviewing candidates for the Chapter I
teaching positions and that Parker completed those forms and returned them to
Eggers at the conclusion of his interviews. Respondent also presented
evidence that Eggers then weighted the various criteria, adopted an adjustment
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factor for prior teaching experience, and computed a score for each of the
candidates. After the scores were completed the Respondent's evidence shows
that the candidates were ranked on the basis of those scores and that the
available persons with the highest scores were recommended for hire. The
Administrative Law Judge is persuaded that the evidence presented by the
Respondent meets its burden of articulating a legitimate, nondiscriminatory
reason for hiring the four persons that were selected for the Chapter I
teaching positions.
Since the Respondent has stated that the Charging Parties were not hired
because they were considered to be less qualified, it is necessary to
determine whether or not this proffered explanation is a mere pretext for
discrimination or is not worthy of belief. McNeil v. Economics Laboratory,
Inc., 41 F.E.P. 1789, 1791 (7th Cir. 1986). In order to raise an issue of
pretext, the Complainant is not required to show that age was the only factor
considered by Parker and Eggers, or that the reasons offered by the Respondent
are false. Complainant only has to show that the proffered reasons were not
the only reasons for the hiring decision and that age made a difference.
Nobler v. Beth Israel Medical Center, 702 F.Supp. 1023, 1028 (S.D.N.Y. 1988)
Age makes a difference when it is a substantial causative factor entering into
the decision not to hire an employee. See, Anderson v. Hunter, Keith,
Marshall & Co., 417 N.W.2d 619, 624 (Minn. 1988). When age is not the sole
reason, it must, however, be a "determining factor." DeHues v. Western
Electric Co., 32 F.E.P. 387 (8th Cir. 1983).
Complainant argues that the process the Respondent followed in evaluating
and ranking applicants for the Chapter I teaching positions was a subterfuge
for discrimination. In support of its arguments that the evaluation process
was a sham, Respondent focuses on Eggers' decision to change the procedure
used to evaluate and hire Chapter I teachers for the 1984-85 school year, the
procedural irregularities that occured during the evaluation process, the
subjective nature of the criteria used, the ages and qualifications of the
persons selected, and Eggers' concerns regarding the effect of hiring former
paraprofessionals in the event the courts determined that they should be part
of the teachers' bargaining unit as well as his policy of considering age in
hiring teachers. Each of those factors must be separately considered.
STATEWIDE SOLICITATION OF APPLICANTS
Complainant argues that the District's (Eggers) decision to abandon its
prior practice of rehiring its former paraprofessionals when the Chapter I
program was reanimated in 1984 evinces a discriminatory intent because the
paraprofessionals were all doing a good job and the job duties had not
changed. Since the paraprofessionals were admittedly qualified for the new
positions, and Eggers had always been satisfied with Parker's recommendations,
Complainant suggests that the changes made in the hiring procedures in 1984
were designed to create a false appearance of objectivity to mask its
discriminatory objectives. In determining whether the new process was a sham,
it is necessary to carefully consider the entire hiring process in the context
of the pending litigation.
After the decision was made to resume the Chapter I program, Eggers
decided the position should be filled by teachers. There is little doubt that
his decision was affected by the Court of Appeals' April decision. As a
result of that decision it appeared that the paraprofessionals would be made
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part of the teachers bargaining unit absent a successful appeal.
Consequently, negotiations proceeded with the HEA regarding the salary,
seniority and tenure rights of the Chapter I teaching staff. Eggers also
decided he would not hire only from the ranks of the paraprofessionals but
would seek applications from all qualified teachers to get the best qualified
persons with the most "up-to-date" training. The new positions were
subsequently advertised as all former teaching positions had been.
Eggers' decision to seek applications for the new Chapter I teaching
positions statewide, and not limit consideration to the former
paraprofessionals, suggests a discriminatory motivation. The duties of the
Chapter I teachers hired in 1984 were substantially the same as the duties of
the paraprofessionals. Eggers and Parker admitted that the paraprofessionals
who were licensed as teachers had been doing a good job and were qualified for
the new teaching positions. Moreover, there is no evidence that the Chapter I
program operated by the District was not successful or that any of the pupils
served by any of the paraprofessionals were not making satisfactory progress
or getting an appropriate level of assistance in math and reading skills. If
there had been some problems in the program, some questions regarding the
paraprofessionals' job performance or their qualifications, the decision to
take a closer look at the persons it hired would be understandable. Since
there is not even a hint of any dissatisfaction, and since one would expect a
degree of loyalty to current employees, Eggers' decision is incongruous.
Eggers' explanation for the decision is that since the new Chapter I
positions were teacher positions, recruitment should follow the same pattern
that was followed to fill all other teaching positions and that the District
should seek out the most qualified persons available. Neither reason is very
compelling under the circumstances. Recruiting on a statewide basis simply
because teachers had always been recruited that way is exceedingly
formalistice given the fact that there were no problems with the Chapter I
program, no doubts about qualifications and job performance of the
paraprofessionals, and no change in the substance of the job duties they would
be performing. The need to seek out more qualified applicants is suspect for
the same reasons. Moreover, the record suggests that the true motivation for
seeking other qualified applicants arose, in part, because of the unit
determination litigation that was pending. Under Eggers' worst case scenario,
the new Chapter I teachers would acquire seniority and bumping rights in the
teachers' unit. If the paraprofessionals were reemployed, the District's
budget could be adversely a f fected becau se the pa raprof es siona 1 s would not be
limited to step zero of the teachers' salary range, could bump regular
classroom teachers, and might have stronger claims for back pay. It's true
that the paraprofessionals previously employed by the District were not
required to be teachers and only tutored in math and reading. It is also true
that they were recruited locally from the District's substitute teaching
list. Hence, when there was a prospect that these paraprofessionals might end
up in a regular classroom setting, there may have been some concern about
their qualifications. However, these factors were never mentioned to explain
Eggers' decision to look elsewhere to find "qualified" people and there is no
evidence that their qualifications were checked or that inquiries were made at
that time to determine if they were qualified or there was a need to look for
better candidates. In fact, it appears that Eggers assumed that there were
better people. In December 1983 he indicated that better people were those
with more up-to-date training. His statements indicate that the District
wanted to find recent graduates. Not only does it suggest that Eggers felt
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that recent graduates were more qualified, but having recent graduates also
fit into his general policy of hiring recent graduates to maintain an age flow
in the District's teacher corps. This raises a strong inference that the
District was seeking recent graduates, if acceptable recent graduates could be
found, and did not want to employ the former paraprofessionals because of
their age and seniority.
In Metz v. Transit Mix, Inc., 828 F.2d 1202 (7th Cir. 1982), the court
held that a 54-year-old employee that was discharged after 27 years of
employment and replaced with a younger employee with less seniority because
the employer wanted to save the higher salary of the older employee
constituted age discrimination because the older employee's salary was related
to his age. In reaching its decision the court noted that:
Courts have also emphatically rejected business practices
in which " the plain intent and effect . . . was to
eliminate older workers who had built up, through years of
satisfactory service, higher salaries than their younger
counterparts."
Id. at 1206.
In Dace v. AFC Industries, Inc., 722 F.2d 374 (8th Cir. 1983), the court
held that discrimination on the basis of factors, like seniority that
invariably would have a disparate impact on older employees is improper under
the Federal Age Discrimination in Employment Act (ADEA). The court went on to
hold that as a result of the close relationship between seniority and age,
displacing a worker with higher seniority in order to save money by hiring an
inexperienced younger employee is prohibited. In Geller v. Markham, 635 F.2d
1027, 24 F.E.P. 920 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981), the
court held that a 55-year-old teacher who was replaced by a 25-year-old
teacher to enable the school board to cut its costs constituted age
discrimination. In that case, the school board had a policy of hiring only
teachers below the sixth step of its salary scale as a cost-cutting measure.
Based on these cases, it is concluded that where economic savings are directly
related to an employee's age, it is unlawful age discrimination to consider
those savings when making employment decisions.
In this case, as is discussed in more detail, infra, the District
deliberately gave its paraprofessionals low scores. That was done, in part,
to avoid paying them higher salaries in the event the courts determined that
they were entitled to retroactive seniority rights and a higher salary. Since
the economic savings the District sought are directly related to the
paraprofessional's seniority, it is concluded that the District's purpose was
discriminatory.
THE EVALUATION PROCESS
In July and August Parker interviewed about 28 job applicants. The
interviews followed the same informal pattern he had used for years. He gave
each applicant an opportunity to examine the job description, to ask questions
and to make comments. Parker used these interviews to evaluate the candidates
and give them an opportunity to sell themselves. Parker did not have a
standardized set of written questions or subjects that he asked and did not
have any files, records or forms available during the interview. He had a
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note pad but he took few notes and asked few questions of the Charging
Parties.
Eggers testified that he gave Parker an evaluation form before any
interviews were held and told Parker to use it to evaluate the applicants he
interviewd. Eggers also testified that the evaluation form was developed
early in June by Walters and Drazenovich. Although Eggers testimony was
supported by Walters and Drazenovich, that testimony cannot be credited.
First, Eggers testified that Walters and Drazenovich were asked to draft an
evaluation form late in May or early in June because Parker was on vacation.
Drazenovich and Walters also testified that the form was completed at that
time. Drazenovich said that the form was drafted before June 15 because he
and Walters were usually on vacation by that date. T. VI, 1115. However, the
record shows that Parker was still at work on June 18 and took his vacation
after that. (Dept. Ex. 10, p. 1). Moreover, Drazenovich admitted that some
interviews may have been held before the evaluation forms were completed. T.
VI, p. 1164. Finally, and most important, Parker stated that he got the forms
after the interviews were completed. Under the circumstances, the
Administrative Law Judge is persuaded that the evaluation forms were not
available at the time of the interviews and that the testimony offered by
Lignell and Sibell concerning the statements Walters, Drazenovich and Parker
made to them in September must be credited.
Other evidence in the record supports a conclusion that the evaluation
forms were given to Parker after the interviews had been completed. On August
29, 1984 Eggers prepared a memorandum for a school board meeting which
described the process followed in selecting the four Chapter I teachers he was
recommending for hire. (Dept. Ex. 36). That memorandum appears to be a
chronological description of the steps taken by the District and suggests that
Parker's interviews were held before the formal evaluation sheets were
adopted. Moreover, the evaluation sheets themselves, while containing a space
for "REMARKS", have no interview notes, and with two exceptions, no statements
concerning the applicants. Kotonias' form states that she is employed and
Prince's form states that as of July 26, 1984 she did not have a teaching
certificate. It is unlikely that Kotonias was employed at the time of the
interview. Hence, the note on her form must have been added later. The
remarks on Prince's form are inconclusive, but the absence of any notations on
the other evaluation sheets does not make sense. If Parker had the evaluation
forms prior to the interviews, it is likely that he would have used them
during the interview and made some remarks on the space provided. Moreover,
if Parker had been aware of the 16 criteria on the evaluation form prior to
the time his interviews were conducted, he certainly would have asked
questions relating to those criteria at the time of the interviews. However,
he did not do so.
The adoption of criteria for the evaluation of candidates following the
completion of interviews and the collection of data is suspect. When criteria
are adopted following interviews an employer can draft criteria to match the
strengths of the persons it wants to hire. If the District wanted to hire
recent graduates, for example, tailor-made criteria could be drafted after the
interviews to ensure that they received the highest scores, In this case,
however, there is no evidence that the criteria were adopted for that
purpose. The criteria are the kind one would expect a school to look at.
Nonetheless, the tardy adoption of criteria is inconsistent with orderly
procedure and raises a reasonable suspicion regarding the District's motive
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for drafting them. If the District was truly on a quest for excellence, it is
unlikely that it would have drafted the criteria and the methodology for
scoring applicants after interviewing them. Hence, the tardy adoption of
those criteria, coupled with the inconsistent testimony of District personnel
on the timing of their adoption, suggests that the criteria were designed to
add a facade of legitimacy to a predetermined result. This is confirmed by
Parker's actions.
Although the applicants scores with respect to some of the criteria could
have been completed after the fact, and although some of them were criteria
that Parker had historically considered, in order to rate candidates with
respect to academic preparation, grade point averages, extracurricular
strengths, special interests, oral and written skills, community involvement,
instructional competencies, and cooperation and professional spirit, some
specific data is needed. However, Parker took steps to obtain necessary
information from any of the Charging Parties before or after his interviews.
The evidence shows that Parker did not ask any questions with respect to these
criteria. Moreover, he did not request that any of the Charging Parties
submit their college credentials to assist him in evaluating their
qualifications. On May 15, 1984, Parker wrote a letter to Susan Proctor
advising her that he had received her application for a teaching position. In
his letter Parker suggested that Proctor send him a copy of her credentials.
However, between June 18 and July 12, in letters written to the former
paraprofessionals and in letters written to Havercamp and Karen Adam, he did
not make that suggestion, but, after July 13, 1984, Parker routinely made that
request of the applicants. Parker testified that he did not ask the Charging
Parties for their college credentials because he thought they would be in
their files. However, Eggers said that credentials are routinely destroyed
after they are received. If that is true, it is unlikely that Parker would
have been unaware of that fact.
Parker's failure to request that the Charging Parties submit copies of
their college credentials to him is compounded by the fact that it appears
unlikely that Smith's transcript or Lignell's credentials were available to
him when the evaluations were completed. Nonetheless, Parker proceeded to
score them under the 16 criteria. If the process was designed to be
objective, one would expect Parker to make some effort to obtain needed
information to evaluate them after he obtained the criteria and realized that
the information he had was inadequate. However, he did not do so. In Zahorik
v. Cornell University, 729 F.2d 85, 93 (2d Cir. 1984), the court noted that
the failure to collect available evidence in making an employment decision is
a departure from procedural regularity which can raise a question as to the
good faith of a hiring process. The adoption of criteria following the
completion of interviews and the ranking of candidates in areas for which no
inquiry was made is evidence of bad faith.
In addition, many of the criteria are highly subjective. As noted by
Complainant, the courts generally recognize that procedures which depend
almost entirely upon subjective evaluations are ready mechanism for
discrimination. Nanti v. Barrows_Co., 66 F.2d 1327, 1334 (9th Cir. 1981).
The federal courts generally require close scrutiny of employment decisions
which rely on subjective evaluations challenged as discriminatory. Crawford
v. Western Electric_Co.,_Inc., 614 F.2d 1300, 1315 (5th Cir. 1980); Davis v.
Califano, 613 F.2d 957, 965-966 (D.C.Cir. 1980). It may be difficult to
determine whether an applicant possesses all the requisite capabilities for a
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emanate from the subconscious of the decisionmaker without any specific basis"
are not sufficient. Tye v. Board of Edu., Polaris Joint Vocational School
Dist., 81 3 F. 2d 31 5, 43 F E. P. 34, 38 (6th Cir. cert. denied , 108 S. Ct. 285
(1987).
Parker testified that he did the best job he could in completing the
evaluation forms after he received them from Eggers. However, he was totally
unable to explain, with any degree of specificity, the factors that he
considered in scoring candidates under the 16 criteria or how he made the
determinations that were made. In the area of educational experience
(recommendations), which was the most highly weighted criteria getting a
weight of 3, Parker was unsure how he scored that criteria in a general way or
with respect to any specific applicant. The Respondent cannot be punished
because Parker has forgotten the details of the scoring process followed.
However, the Administrative Law Judge is persuaded that his "forgetfulness" is
not entirely genuine. After the school board approved Eggers' recommendations
in September 1984, Lignell and Sibell questioned Parker about the scores they
received. At that time he was unable to give any meaningful explanation. If
he could not give an understandable explanation then, it is not surprising
that he cannot do so now. Moreover, while Parker has been retired for four
years, it is unlikely that he would forget as much as he said he has. The
Chapter I hiring saga is not the kind of event one would easily forget. That
is especially true with respect to the former paraprofessionals' scores. He
worked with them for a number of years, was acquainted with their lawsuit, and
the publicity surrounding the Chapter I situation. As a director of
elementary education he must have had conversations with teachers,
superintendents and parents concerning the paraprofessionals, and even
Havercamp, and formed some opinions regarding the success of the Chapter I
program and their job performance. Nonetheless, he presented no explanation
for the relatively low grades he gave them in highly subjective areas. There
are no known problems with respect to their qualifications or job
performance. Hence, the low scores he gave to the Charging Parties in many
areas seems totally unjustifiable. It is unlikely that qualified teachers who
have been employed year after year for the Respondent and whose job
performance was admittedly satisfactory if not superior, would receive scores
so low that even after they were weighted and adjusted by up to 20% for
experience, they would still fall far short of meeting the scores given to
younger, recent graduates.
The overall scores Parker gave to older applicants generally, and the
Charging Parties specifically, also persuade the Administrative Law Judge that
Parker's evaluations were a mere pretext for rejecting them because they were
older. Parker's scores lumped almost all older applicants and all the
paraprofessionals together at the bottom of the heap. Given the total lack of
any evidence of problems with respect to the Charging Parties, it is
inconceivable that they were all equally inferior to the younger applicants.
Although there is evidence suggesting that recent graduates were desired,
in part, because they had "up-to-date" training, the Respondent presented no
evidence tending to show what training recent graduates had that the Charging
Parties didn't have. Although Eggers mentioned that computer training was an
example of the skills recent graduates had, no inquiries were made of the
applicants regarding their training in computers and no specific areas of
special training were listed on the evaluation forms. Also, the District made
no showing that computer training was needed. Under these circumstances, the
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candidates could be hired. Younger candidates were desired because of the
District's age-flow policy and in order to avoid unnecessary complications in
the event the former paraprofessionals were found to be members of the
teachers' bargaining unit.
The ages of the paraprofessionals are directly related to the seniority
they would have in the event Eggers' worst case scenario came true. However,
the amount of the additional expenses the District might incur in the event
the paraprofessionals were rehired and found to be members of the bargaining
unit is not known. Clearly, it was perceived to be substantial enough to make
a difference. Since seniority is related to age, the Administrative Law Judge
is persuaded that consideration of that factor was discriminatory. However,
even if that were not true, there is persuasive evidence that age alone made a
difference in the hiring process because the District wanted to employ recent
graduates. The desire to hire recent graduates not only applied to the
Charging Parties but also applied to Havercamp. Clearly the concerns the
District had about reemploying the paraprofessionals due to the pending
litigation was only a partial factor in its decision. Their reemployment was
also inconsistent with its policy of hiring recent graduates to maintain an
age flow. This policy, which was not denied, not only affected the Charging
Parties but also affected Havercamp.
Although the District did employ one former paraprofessional (Sibell), the
Judge is not persuaded that hiring is inconsistent with the conclusions
reached herein. Although Sibell's employment was inconsistent with Eggers'
"worst case" scenario, she was younger than all but one of the other former
paraprofessionals who qualified for the position and was apparently more
acceptable to the District and the youngest paraprofessional. Moreover,
Smith's subsequent employment in the Chapter I program for the 1985-86 school
year does not evince good faith because that hiring occurred after she filed
an age discrimination charge against the District. Smith was reemployed that
year not because she was next in line on Eggers' ranking, but because she was
the best candidate under a new, scientifically-based interview and evaluation
process. The fact that Smith was the number one candidate in a
scientifically-based evaluation process in 1985 supports her overall
qualifications and is further evidence of some impropriety in the process
followed in 1984.
DAMAGES
Since the Administrative Law Judge is persuaded that age was a substantial
causative factor in the Respondent's evaluation of and failure to hire the
Charging Parties in this case, appropriate relief must be ordered.
CIVIL PENALTY
Minn. Stat. 363.071 authorizes the issuance of a cease and desist order
against a respondent who has violated the Human Rights act (HRA). In
addition, in 1984, it required that a respondent found in violation of the HRA
to pay a civil penalty to the state in addition to compensatory and punitive
damages. With respect to the amount of the civil penalty to be paid by
respondent, the statute states that the following factors must be considered:
"The seriousness and extent of the violation, the public harm occasioned by
the violation, whether the violation was intentional, and the financial
resources of the respondent." The violation in this case is
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serious. It affected all the older applicants who applied for Chapter I
teaching positions and the State's interest in eradicating age-based
discrimination. The public interest has also suffered as a result of the
expenses that have been incurred by the State to prosecute this matter.
Moreover, the violation was intentional. Parker knew that age-based
discrimination was prohibited. In 1979, he was required to respond to
Havercamp's charge alleging that she had been discriminated against on the
basis of her age when he hired a younger person for a kindergarten position.
However, there is no evidence in the record pertaining to the District's
financial resources or the costs the State has incurred in this matter. Under
these circumstances, a civil penalty of $10,000.00 is appropriate. Civil
penalties assessed in the past have commonly been in the range of $500 to
$3000 for a violation affecting one person.
MENTAL ANGUISH AND SUFFERING
All the Charging Parties suffered mental anguish as a result of the
District's failure to hire them. However, it appears that Lignell and Smith
were not as severely traumatized as Havercamp and Jaksha and that Jaksha
suffered the most. Lignell and Smith soon found other full-time work and had
the least loss of income. The duration of their anguish was shorter and their
ability to find work paying as much as they would have made if they had been
hired eased the stress that follows income loss. They should receive
$3,000.00 each. Havercamp's anguish persisted for a longer period of time due
to her inability to find full-time work. She is entitled to $5,000.00.
Jaksha, the oldest member of the group, was affected the most and was
devastated by her second rejection in 1985. Her feelings at that time were
caused, in large part, by her rejection in 1984. She is entitled to
$10,000.00.
COMPENSATORY DAMAGES
Compensatory damages may be awarded under Minn. Stat. 363.071, subd. 2
(1984). Under the statute, the compensatory damages awarded should make the
victim whole by placing her in the position she would have been in had no
discrimination occurred. Brotherhood of Railway and Steamship Clerks V.
Balfour, 303 Minn. 178, 229 N.W.2d 3, 13 (1975); Anderson v. Hunter, Keith,
Marshall & Co., Inc., 417 N.W.2d 619, 627 (Minn. 1988).
In awarding compensatory damages in this case, each of the Charging
Parties should be fully compensated for her income loss during the 1984-85
school year. The amount of income loss should be measured by the amount they
would have received as a Chapter I teacher less the income they earned during
the school year, as follows:
Smith $14,630 $ 891 or $13,739.00
Lignell $14,630 $4,293 or $10,337.00
Havercamp $14,630 $2,762 or $11,868.00
Jaksha $14,630 $1,738 or $12,892.00
Since Smith and Lignell were regularly employed from and after the 1985 86
school year, their total compensatory damages are $13,739 and $10,377
respectively.
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In addition to the wage loss Havercamp sustained during the 1984-85 school
year ($11,868), Havercamp has lost $42,080 through the end of the 1988-89
school year. During that four-year period Havercamp would have earned $65,930
as a Chapter I teacher, but her actual earnings were only $23,850. Hence, her
total wage loss has been $53,948. ($42,080 plus $11,868).
Jaksha has not been employed since 1985. Consequently, she has sustained
wage losses to the present time. However, her situation is somewhat different
because she stopped looking for work in 1985 and let her teaching license
expire. Her decision to drop out of the labor market was due, in large part,
to the District's failure to hire her in 1984 and 1985. The issue, therefore,
is whether her failure to look for work after 1985 should be considered in
computing her damages after that time.
Victims of discrimination have a duty to use reasonable diligence in
finding other employment in order to mitigate their damages. Anderson v.
Hunter, Keith, Marshall & Co., 417 N.W.2d bl9, 627 (Minn. 1988). However, the
burden of proving that a victim's damages could have been mitigated is on the
respondent. See, e.g., Sias_v. citv Demonstration agency
588 F.2d 692 (9th
Cir. 1978). In this case, there is clear evidence that Jaksha failed to use
reasonable efforts to mitigate her damages. Since there is no medical
evidence that she was simply unable to work for emotional reasons, and since
it is clear that substitute teaching positions are always available, it is
concluded that Jaksha's wage loss after the 1985-86 school year should not be
compensated, and for the 1985-86 school year her wage loss should be reduced
by $2000 -- roughly the earnings she had as a substitute teacher the year
before. Hence, she is entitled to compensatory damages of $12,892 for the
1984-85 school year, and $13,632 for the 1985-86 school year ($28,524).
Under 363.071, subd. 2, compensatory damages up to three times the
damages actually sustained can be awarded. Due to the absence of any evidence
regarding the District's financial position and the adverse effect a large
award could have on pupils, it is concluded that compensatory damages should
be limited to the actual wage losses sustained and that interest on those sums
should not be required.
PUNITIVE DAMAGES
Under 363.071, subd. 2 (1984), punitive damages of up to $6000 can be
assessed against a respondent only under Section 549.20, which provides:
Subd. 1. Punitive damages shall be allowed in civil
actions only upon clear and convincing evidence that the
acts of the defendant show a willful indifference to the
rights or safety of others,
Subd. 3. Any award for punitive damages shall be measured
by those factors which justly bear upon the purpose of
punitive damages, including the seriousness or hazard to
the public arising from the defendant's misconduct, the
profitability of the misconduct to defendant, the duration
of the misconduct and any concealment of it, the degree of
the defendant's awareness of the hazard and of its
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excessiveness, the attitude and conduct of the defendant
upon discovery of the misconduct, the financial condition
of the defendant, and the total effect of the punishment
likely to be imposed upon the defendant as a result of the
misconduct, including compensatory and punitive damage
awards to the plaintiff and other similarly situated
persons . . .
Age discrimination is a serious threat to the public interest and
adversely affects older persons from obtaining gainful employment. In this
case, the record shows that the District, due in part to a cost-saving motive,
discriminated against older applicants and had apparently done so for a number
of years. Even though one discrimination charge had been filed against it in
1979, no corrective actions were taken. These factors establish a willful
indifference to the rights of the Charging Parties and justify an award of
punitive damages.
However, the Administrative Law Judge is not persuaded that the maximum
allowable punitive damage award should be made to each Charging Party or that
all Charging Parties should receive the same amount. There is no evidence
regarding the District's financial condition and the damages it must pay to
the Charging Parties are substantial. Moreover, to the District's credit, it
adopted new hiring policies in 1985 and rehired one of the Charging Parties at
that time. Under all these circumstances, it is concluded that the Charging
Parties should be awarded the following punitive damages:
Smith $2,000.00
Lignell $2,000.00
Havercamp $2,000.00
Jaksha $3,000.00
REINSTATEMENT
Only Jaksha seeks a reinstatement order. Since she is no longer licensed
as a teacher, however, that request should be denied.
J.L.L.
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