The issue in this case is whether petitioner was denied permanent employment with the Family Court because of racial discrimination.
Ernestine Giles (petitioner) initiated this proceeding before the Delaware Equal Employment Review Board (Board)
The relevant facts shown by the record before us are these:
On March 12, 1972, petitioner (who is black) and Mrs. Nancy Jones (who is white) were hired by the Family Court as Merit System employees within the Something for Something (SFS) program. A SFS worker is not a permanent State employee but is appointed for a limited period and is eligible for permanent employment only upon meeting Merit System qualifications. Thereafter, Mrs. Jones passed the clerk-typist examination and received a permanent position with the Family Court in Sussex County.
On February 16, 1973, Mrs. Jones resigned, thus creating a vacancy for a clerk-typist. Meanwhile, two other events relevant to this case had occurred: In January 1973, a clerk-typist notified Brooks Parker (who was black), the Office Supervisor in charge of hiring for the Family Court in Sussex County, that she would take maternity leave effective March 1, thus creating a temporary opening; and on February 13, petitioner passed the clerk-typist test and so became eligible for permanent employment.
Later in February, Mr. Parker told petitioner about the two vacancies, and informed her that she could have whichever position she chose. Petitioner told Mr. Parker that before she made a decision, she "wanted to talk it over with different people in [her] ... department."
On February 26, before petitioner had made her decision, Mrs. Jones contacted the Family Court seeking reinstatement to her former position. The next day, February 27, petitioner informed Mr. Parker that she wanted the permanent position. The result, of course, was that two persons were seeking one available permanent position. For guidance as to what to do, William Conway, the Family Court supervisor in Sussex County for the clerk-typist position, communicated with the Family Court in Wilmington which, in turn, consulted the State Personnel Commission.
Mr. Parker then arranged for Mrs. Jones to return to work (in her former capacity) on March 5, the Monday after he had been informed of the Personnel Commission's interpretation of the Rules. The appropriate form (PT-1) was completed for Mrs. Jones and signed by the Director of the State Personnel Commission, thereby making her reinstatement official.
Meanwhile, petitioner continued to work. However, a PT-1 form formalizing her appointment to a permanent position was never signed by the State Personnel Director. Mr. Parker, without consulting petitioner, prepared a new PT-1, which placed petitioner in the position temporarily vacant while the clerk-typist was on maternity leave. That form received the required signature on March 13. Thus, Mrs. Jones was returned to her former status and petitioner was working on a temporary basis.
When petitioner learned that she was only a temporary employee and that Mrs. Jones had been placed in the permanent position, she filed the charge of racial discrimination before the Board.
Petitioner argues that she received a permanent Merit System appointment as of February 27, when she accepted the job offered to her by Mr. Parker. It follows, she says, that when Mrs. Jones returned, there was not a vacancy; therefore, a prima facie case exists that she has been refused appointment on the basis of race because there was not a reasonable basis for rejecting her.
The Family Court contends that: (1) a Merit System appointment is not made until it has been approved by the Director of State Personnel; (2) such approval had not been given to petitioner at the time Mrs. Jones sought reinstatement and, therefore, a vacancy existed; and (3) as between petitioner and Mrs. Jones, the latter had priority under the Merit System Rules which give such preference to an employee seeking reinstatement over applicants on the regular competitive list.
This is the first ruling by the Equal Employment Review Board to reach this Court on appeal and, indeed, there is but one prior reported appeal from the Board. See News-Journal Company v. Connell, Del.Super., 328 A.2d 150 (1974).
The threshold question, of course, is the standard of review to be applied to the Board's ruling. The statute, § 712(k), provides that an "appeal shall be on the record only before the Department." In Connell, the Superior Court applied a "substantial evidence" test in reviewing the Board's action, saying that "[i]f the record discloses substantial evidence to support the Board's decision, this Court must affirm." Id. at 153.
That standard is consistent with the approach Delaware Courts have generally taken in reviewing agency decisions. See, for example, Unemployment Insurance Appeal Board of the Dep't of Labor v. Duncan, Del.Supr., 337 A.2d 308 (1975); and Sutton v. Board of Adjustment of the City of Wilmington, Del.Super., 200 A.2d 835 (1962). And the Administrative Procedures Act, which applies to thirteen State agencies, directs that judicial review of agency decisions be on a "substantial evidence" basis.
We hold that judicial review of a decision by the Board "shall be limited to a determination of whether the [Board's]... decision was supported by substantial evidence on the record before" it. Compare 29 Del.C. § 6442.
Turning now to the merits, the parties agree that the four-pronged test announced by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), should be invoked to determine whether there is substantial evidence in the record to support the Board's decision that discrimination occurred. That test requires a petitioner to make out a prima facie case of discrimination, as follows:
We conclude that this is the test to be applied in determining whether a petitioner has established a prima facie right to relief under 19 Del.C. § 711(a). While the McDonnell Douglas test was developed in the context of Title VII cases, in our view it is appropriate for a § 711(a) action as well,
We should also add that if a petitioner makes out a prima facie case of discrimination under § 711(a), it does not necessarily follow that such a finding must be made by the trier of fact or that the petitioner is entitled to relief. That is the substance of the rule announced in Furnco Const. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), which, we conclude, is also to be applied to a § 711(a) action. In Furnco the Supreme Court said:
After reviewing the record, the Superior Court concluded that petitioner had failed to make out a prima facie case of racial discrimination. The Court focused principally on the Board's conclusion that the Family Court had given preference to a white woman over petitioner "for no valid reason." It determined that the Board's conclusion was incorrect, saying:
Applying the McDonnell Douglas test to the record facts, the Court determined that petitioner had not satisfied the fourth prong of the test: the Family Court did not have a position that "remained open," for which it "continued to seek applicants," after it rejected petitioner. The Court concluded that petitioner was rejected because a person with a higher priority had applied for the position, and that after she was rejected, the position was effectively closed to persons with her qualifications, and the Family Court did not seek or accept new applications for the position.
We have reviewed the record and while our analysis of what it contains differs somewhat from that made by the Superior Court, we reach the same conclusion. The testimony is undisputed that the Family Court reappointed Mrs. Jones because it thought it could not do otherwise under the Merit System Rules. Indeed, petitioner does not argue that the Personnel Commission improperly construed the Merit System Rules when it advised the Family Court that Mrs. Jones was entitled to a preference in hiring. A fair inference from the record is that the Family Court was prepared to hire petitioner until it received the application which was entitled to priority over hers.
The only evidence which might be regarded as indicating that race, rather than priority status under the Merit System Rules, was responsible for petitioner's rejection is based solely on the fact that Mrs. Jones is white, and petitioner is black. That meets the first requisite of McDonnell Douglas but it alone is not sufficient to support a prima facie finding of racial discrimination.
"(a) It shall be an unlawful employment practice for an employer: