This appeal arises from an action by appellant Cy Kaster claiming that his repeated denials for promotion within respondent school district were the result of discriminatory employment practices. The district court, after a full trial, ruled that appellant had not established a prima facie case of discrimination, entered judgment in favor of respondent, and Kaster appealed. Because we find that appellant did, in fact, demonstrate a prima facie case of discrimination which was not refuted by respondent, we reverse.
Appellant is a white, Jewish male who has been employed as a teacher by respondent school district for 24 years. Over the past 19 years, appellant has applied for numerous administrative positions within the school district but has never been recommended for promotion. In 1970, appellant, concerned about his failure to be promoted, pressed the school district administrators for an explanation of his repeated rejections. Dr. Young, at that time the school district's superintendent, suggested that it may have been the result of "intangible factors."
Although appellant believed that he was already qualified for a position as principal or assistant principal, he participated in the internship program thinking that it would lead to his desired promotion.
In March 1971, as part of the internship program, appellant was assigned to Mounds Junior High School, performing the duties of an assistant principal under principal Richard E. Krueger. During this period, appellant received his specialist's degree (Ph.D. equivalent) in Educational Administration from St. Thomas College.
In the fall of 1972, appellant was transferred to Monroe Junior-Senior High School, continuing in the internship program under principal Wayne Gilleland. After two years at Monroe, appellant was notified that there was no longer money available for the internship program and that he would have to return to teaching. During the three and one-half years that appellant participated in the minority internship program performing administrative duties, he received no additional salary above that to which he was normally entitled as a classroom teacher.
In the summer of 1974, appellant filed a complaint against respondent with the St.
Appellant subsequently applied for two assistant principalships within the school district. He was interviewed by a school district screening committee but was not recommended for promotion in either instance. Altogether, appellant made application for at least five administrative positions between 1970 and 1976, interviewing with the screening committee on each occasion and being rejected for every opening, despite his fine qualifications, administrative experience and outstanding recommendations.
The use of the screening committee was started by the district in the early 1960's. The committee generally consists of five to nine persons who are employed by the district at various levels, selected either by the superintendent or his deputy. The committee typically interviews each applicant for one-half hour, during which each member is expected to ask at least one question. No discussion of the applicant is permitted after the interview and the recommendation of each committee member is secret. The chairperson then prepares a summary report and presents it to the superintendent who ultimately makes the final determination. Since 1973, however, no recommendation of the screening committee has ever been disapproved by the superintendent or his deputy.
On appeal Kaster contends that the evidence introduced at trial established a prima facie case of disparate treatment, thus shifting to respondent the burden of demonstrating a legitimate nondiscriminatory reason for its actions.
In Danz v. Jones, 263 N.W.2d 395 (Minn.1978), we upheld a claim alleging sex discrimination, ruling that a prima facie case had been established. In so holding, we acknowledged criteria, set out 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). McDonnell Douglas involved the claim of a black employee under 42 U.S.C. § 2000e (Title VII) that his discharge and the general hiring practices of the employer were racially motivated. The Supreme Court extensively discussing the allocation of the burden of proof in a Title VII action emphasized that "* * * Title VII tolerates no racial discrimination, subtle or otherwise," 411 U.S. 801, 93 S.Ct. 1824, 36 L.Ed.2d 677, and set out criteria for establishing a prima facie case:
The McDonnell Douglas test does not require any showing of direct proof of discrimination by the employer to sustain the prima facie case. The ultimate burden of proof, however, is retained by the employee. Naraine v. Western Electric Company, Inc., 507 F.2d 590 (8 Cir. 1974).
The elements of the prima facie case set out in McDonnell Douglas may not, however, be appropriate in every case alleging discrimination in employment. 411 U.S. 802, n. 13, 93 S.Ct. 1824, 36 L.Ed.2d 677; Danz v. Jones, 263 N.W.2d 395, 399. McDonnell Douglas dealt with a job, the performance of which required the exercise of little, if any, discretion or judgment. It was a job which presumably could have been carried out equally well by anyone possessing certain minimum qualifications. In such a case, the rejection by an employer of a minority applicant with the requisite ability, coupled with the employer's ongoing search for a similarly qualified employee, raises a clear inference of discrimination and should shift to the employer the burden
In the case before us we are faced with a new but undoubtedly prevalent situation. Here, the position in question is an administrative one, requiring in a successful applicant a wider range of attributes than the mere satisfaction of minimum requirements. A principal or assistant must have the ability to deal with a variety of situations and handle difficult responsibilities necessary to the efficient operation of the school. Whether an applicant possesses the requisite capabilities may be difficult to perceive from objective criteria alone. Because of this difficulty, it may not be unreasonable for an employer to resort to the use of some subjective processes to evaluate potential employees. In addition, it is not uncommon for an employer to accept a number of applications from those qualified and to select one individual whom it believes would best fill the position. The rejection of the other applicants, although some of them may be members of a protected class, should not, without more, be sufficient to cause the burden to shift to the employer. See, Olson v. Philco-Ford, 531 F.2d 474 (10th Cir., 1976).
The potential for discriminatory practices to exist undiscovered in such a situation, however, is obvious. It being the intent of the legislature by enacting Minn.St. 363 to eliminate all discrimination in employment, however subtle, it follows that any test to determine whether a plaintiff has sustained a prima facie case of discrimination cannot be inflexible but must be tailored to fit the individual situation.
In the typical discrimination case as depicted in McDonnell Douglas, establishing a prima facie case does nothing more than raise an inference of discrimination. This is true because of the recognition that direct proof of discrimination may often be difficult, if not impossible, to demonstrate. Once this inference is raised, it is incumbent on the employer, in order to avoid liability, to rebut it by a showing of a legitimate non-discriminatory purpose.
Reviewing the facts before us, we conclude that the appellant has met his burden. He was a member of a minority group accorded protection under Minn.St. 363, possessed more than the minimum qualifications for the position in question, and had for a number of years. The letters of recommendation from his immediate supervisors were, as far as the record indicates, superior to those of the other applicants both in terms of quantity and quality. Appellant had also acquired at least three years administrative experience during his tenure with the minority internship program, for which he was highly praised. Appellant also had more seniority than a significant number of applicants.
Moreover, appellant introduced at trial statistical evidence which he claimed demonstrated a gross disparity between the percentage of Jews living in St. Paul and the percentage represented in administrative positions within the school district. The statistical data presented was limited, perhaps because of the small statistical sample, and somewhat incomplete.
Considering the subjective procedure utilized by respondent in the selection of prospective administrators, our decision becomes even more clear. This should not be understood as a condemnation of all subjective selection procedures. We are well aware of the necessity of such procedures in making difficult employment decisions. It must be recognized, however, that any subjective procedure has within it the potential to favor applicants who are most like those doing the selecting. To avoid this, an adequate selection process should contain built-in controls to counteract any inherent problems which may exist.
An examination of the screening technique used by respondent reveals a number of deficiencies. The members of the selection committee were not instructed as to the basis on which the applicants were to evaluated.
There being no substantial dispute as to the operative facts in this case, we may freely review the evidence and draw our own inferences. See, In re Trust Known as Great Northern Iron Ore Properties, 308 Minn. 221, 243 N.W.2d 302, certiorari denied, Arms v. Watson, 429 U.S. 1001, 97 S.Ct. 530, 50 L.Ed.2d 612 (1976). For the reasons stated above, we believe that the evidence, taken as a whole, did raise an inference that appellant was a victim of discrimination. Following this determination, absent a showing by respondent that its actions were legitimate and non-discriminatory, liability will attach.
Therefore, our inquiry must shift to whether or not respondent has successfully demonstrated a legitimate non-discriminatory motive for its conduct. We must answer that question in the negative. Respondent has presented no evidence whatsoever to explain its repeated failure to promote appellant. The record is devoid of testimony of members of past screening committees that interviewed appellant, nor was there any testimony pointing out any professional deficiencies possessed by appellant. In light of this inability of respondent to rebut the inference of discrimination raised by appellant, we must rule that respondent's continuous refusal to professionally advance appellant was the result of discrimination in violation of Minn.St. 363.03, subd. 2. The judgment of the district
TODD, J., took part in the consideration or decision of this case.
See, Rowe v. General Motors Corporation, 457 F.2d 348 (5 Cir. 1972) (subjective selection process utilized by defendant held to be discriminatory).