Ballard v. University of Vermont

Ballard v. University of Vermont  (95-363); 166 Vt. 612; 693 A.2d 713

[Filed 26-Mar-1997]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-363

                            SEPTEMBER TERM, 1996


Lynne Ballard                        }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Chittenden Superior Court
                                     }
University of Vermont and State      }
Agricultural College, John           }     DOCKET NO.  S229-92CNC
Hennessey and Gerald Francis         }


       In the above-entitled cause, the Clerk will enter:

       Plaintiff Lynne Ballard appeals from an adverse jury verdict on claims
  of sex discrimination against defendant University of Vermont (UVM) under
  the Equal Pay Act (EPA), Title VII, and Vermont's Fair Employment Practices
  Act (FEPA).  She argues that the court erred by denying her the opportunity
  to use her sixth peremptory challenge and by admitting testimony on the
  quality of the performance of her successor.(FN1)  We agree and reverse.

       Plaintiff began working in the Division of Continuing Education at UVM
  in the summer of 1979 shortly after receiving her master's degree in Higher
  Education and Student Affairs. At the end of the summer, plaintiff was
  appointed as assistant director of operations, and in 1982, she became
  acting director of the Division.  Plaintiff received her doctoral degree in
  Educational Administration and Planning in 1987, and the following year,
  UVM initiated a national search for the permanent position of director. 
  Plaintiff applied for the position, and the search committee selected
  plaintiff as one of four finalists whose names were forwarded to the
  Provost.  Ultimately, the Provost hired Edward Twardy in 1990 to fill the
  permanent position of director at a salary about $28,000 per year more than
  UVM had paid plaintiff.  Plaintiff filed suit against UVM, the Provost and
  the Interim Provost, alleging various claims of sex discrimination.  The
  individual defendants were dismissed at trial, a jury rendered a verdict
  for defendant UVM, and plaintiff appeals.

       Plaintiff first claims that the court erred by denying her the
  opportunity to use her sixth peremptory challenge.  After plaintiff's
  counsel exercised five of his six peremptory challenges, he was satisfied
  with the jury and "passed."  Defense counsel then struck juror number 2,
  bringing juror number 13 onto the panel.  Plaintiff's counsel challenged
  juror 13 for cause, but the court declined to remove the juror. 
  Plaintiff's counsel then requested to use his sixth peremptory challenge,
  but the court denied the request.  On appeal, plaintiff claims that the
  court erred by considering plaintiff's "pass" to be a waiver of the sixth
  peremptory challenge.

       This Court ruled on this issue soon after the jury trial in this case. 
  In Westcom v. Meunier, ___ Vt. ___, ___, 674 A.2d 1267, 1269 (1996), we
  held that the trial court erred by treating plaintiff's pass as a waiver
  and refusing to allow plaintiff to exercise his sixth

 

  peremptory challenge after defendants had changed the composition of the
  panel.  As we noted, "[a] pass does not constitute a waiver until the
  jurors are sworn."  Id.  At oral argument, defense counsel conceded that
  Westcom is indistinguishable from the present case, and we decline to
  reconsider this holding.  "Plaintiff was entitled to exercise [her] sixth
  peremptory challenge before the jury was impaneled."  Id.

       Although we reverse because plaintiff should not have had to proceed
  with the jury as impaneled, we address another claim of error that is
  likely to arise again on remand.  See Hodgdon v. Mt. Mansfield Co., 160 Vt.
  150, 161, 624 A.2d 1122, 1128 (1992) (reversing based on first issue but
  addressing second issue because likely to arise on remand).  Plaintiff
  argues that the court erred in admitting testimony on the quality of
  Twardy's performance after he was hired by UVM because this information was
  not available at the time Twardy was hired and his salary was set.  She
  maintains that after-acquired information is not relevant to sex
  discrimination or EPA claims.  We agree.

       The quality of Twardy's performance after he was hired is irrelevant
  to the Title VII and FEPA claims because it could not have influenced UVM's
  hiring decision.  See Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989)
  (plurality opinion) (employer may not prevail by offering legitimate reason
  for its decision "if that reason did not motivate it at the time of the
  decision");(FN2)  Hodgdon, 160 Vt. at 161, 624 A.2d  at 1128 (standards and
  burdens under FEPA identical to those under Title VII); see also McKennon
  v. Nashville Banner Publishing Co., 115 S. Ct. 879, 885 (1995) ("employer
  could not have been motivated by knowledge it did not have"; therefore,
  cannot avoid liability for age discrimination based on after-acquired
  evidence of wrongful conduct); Wallace v. Dunn Constr. Co., 62 F.3d 374,
  378 (11th Cir. 1995) (after-acquired evidence rule of McKennon applies to
  Title VII sex-discrimination claim); Norris v. City & County of San
  Francisco, 900 F.2d 1326, 1331 (9th Cir. 1990) (information not known at
  time employment decision is made is "entirely irrelevant" to Title VII
  claim).

       Evidence of Twardy's performance after he was hired is also irrelevant
  to the EPA claim.  Under the EPA, plaintiff has the initial burden to show
  that she received lower wages than Twardy for "equal work on jobs the
  performance of which requires equal skill, effort, and responsibility, and
  which are performed under similar working conditions."  29 U.S.C. §
  206(d)(1); Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir.
  1994).  Defendant maintains that it was entitled to show that Twardy was
  hired to perform and was actually performing a job that is substantively
  different from the job that was performed by plaintiff.

       In comparing the jobs performed by plaintiff and Twardy, the inquiry
  focuses on the primary duties of each job.  Goodrich v. International
  Brotherhood of Elec. Workers, 815 F.2d 1519, 1524 (D.C. Cir. 1987);
  Mulhall, 19 F.3d  at 592.  Equal jobs must have a common core of tasks. 
  Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir. 1986).  Equal work does not
  mean that the jobs must be identical; rather, they must be substantially
  similar.  Goodrich, 815 F.2d  at 1524.  "The statute explicitly applies to
  jobs that require equal skills, and not to employees that possess equal
  skills."  Hein v. Oregon College of Educ., 718 F.2d 910, 914 (9th Cir.
  1983).  Thus, under the EPA, "we compare the jobs, not the individual
  employees holding those jobs."  Mulhall, 19 F.3d  at 592.  In comparing two
  jobs, abilities of persons in the positions are

 

  not relevant.  Goodrich, 815 F.2d  at 1524.

       Following these rules, we conclude that the quality of Twardy's
  performance after defendant hired him is not relevant to the EPA inquiry. 
  Only the duties Twardy performed may be compared to the duties plaintiff
  performed to determine if they performed equal work requiring equal skill,
  effort and responsibility.  As plaintiff points out, the quality of
  Twardy's performance at this job could not have been the basis for setting
  his initial salary significantly higher than that paid to plaintiff.  Nor
  was a 1993 contract with IBM relevant to the 1990 decision to pay Twardy
  more than $28,000 more than plaintiff received.  "[E]quality of work is not
  determined by duties or responsibilities which were to be assumed in the
  future."  Strecker v. Grand Forks County Social Serv. Bd., 640 F.2d 96, 100
  (8th Cir. 1980), overruled on other grounds by Robino v. Norton, 682 F.2d 192, 195 (8th Cir. 1982).

       Defendant argues that the after-acquired evidence of Twardy's
  performance was properly admitted to bolster the credibility of the Provost
  because plaintiff put his credibility at issue by claiming that the reasons
  he proffered for the decision to hire Twardy were pretextual.   Not
  surprisingly, defendant cites no authority to support this argument.  In a
  Title VII or FEPA case, plaintiff has the burden of showing that a
  proffered legitimate basis for the employment decision is pretextual. 
  Graff v. Eaton, 157 Vt. 321, 324 n.3, 598 A.2d 1383, 1385 n.3 (1991).
  Following defendant's reasoning, after-acquired evidence would be
  admissible in any Title VII or FEPA case where a plaintiff attempted to
  meet this burden.  Accordingly, we reject this argument.

       In light of this ruling, we do not consider whether the court erred by
  refusing to allow plaintiff's rebuttal witness to testify on the issue of
  the quality of Twardy's performance. Exclusion of this testimony magnified
  the error of allowing evidence of the quality of Twardy's performance in
  the first place.

       Reversed and remanded.


     BY THE COURT:



     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice

     _______________________________________
     Edward J. Cashman, District Judge
     Specially Assigned



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                                 Footnotes


FN1.  Plaintiff raises other issues we do not reach because we reverse
  based on the court's denial of the use of plaintiff's sixth peremptory
  challenge.

FN2.  Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) was superseded
  by the Civil Rights Act of 1991, see 42 U.S.C. § 2000e-2(m), which does not
  operate retroactively, and therefore, is not applicable here.  See Mulhall
  v. Advance Sec., Inc., 19 F.3d 586, 589 n.9 (11th Cir. 1994) and cases
  cited therein.