that is not sex related, and need not state that the selection was based upon merit. Stating that a man was selected over a woman for a job because the man had more friends in high places constitutes a "non-discriminatory reason" for the unequal treatment sufficient to avoid liability under Title VII even though such hiring practices may violate other laws.
The defendants must prove the legitimacy of their articulated reason by a preponderance of the evidence, Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). After the defendant sets forth such reasons, the plaintiff may offer "competent evidence" to show that the articulated reasons are not legitimate and are offered to only mask or serve as a pretext for a discriminatory decision, McDonnell Douglas Corp. v. Green, 411 U.S. at 804-05, 93 S. Ct. 1817.
Rutherford's first claim is that the Defendants' decision to appoint three males to secondary school principalships in August 1975 was based upon sex discrimination. Before the trial began, Rutherford's counsel with the cooperation of the Defendants went to elaborate efforts to assemble a statistical presentation showing sex discrimination in the 1975 appointments. These efforts were unsuccessful because of the 13 individuals who were certified as secondary school principals and who had indicated an interest in a permanent principalship at a secondary school, 12 were male. Accordingly, the appointment of three males to the available positions was not statistically inconsistent with the preponderance of males in the applicable pool. The Court at trial held that Rutherford's testimony that Hilinski told her that she would not be appointed because the Board "would never approve a woman" constituted a prima facie case of discrimination, and shifted the burden to the Defendants on the basis of that testimony.
Hilinski testified during the Defendants' case in chief that the selection of the three men was based upon his perception of their leadership qualities, ability to work with students and other administrators, their understanding of the responsibilities of a secondary school principal, overall personality, experience, and the length of time each candidate had been certified as a secondary school principal. Hilinski said this last criterion was an important differentiating characteristic between the appointees and Rutherford; all the appointees, besides being male, were certified as secondary school principals long before Rutherford, who at the time of the August 1975 appointments had been certified for only six months. In contrast, two of the appointees, Rupert Stadtmiller and Michael Evanoff, had each been certified for over five years, and the third, Henry Chalupzynski, had been certified for over nine years. On cross-examination Rutherford admitted that Evanoff was at least as qualified as she was because he had more experience than she did. The evidence clearly indicates that the August 1975 appointments were not sex based, that is, the male appointees were not selected because they are male and Rutherford was not denied one of the appointments because she is female.
After the Defendants explained their reasons for the August 1975 appointments as well as during the presentation of Rutherford's prima facie case, her counsel requested the Court to hear evidence that Rutherford was as qualified as the men who received the August 1975 appointments. Specifically, Plaintiff's counsel sought to admit the Plaintiff's academic records from undergraduate and graduate school and the results of evaluations which the Plaintiff and other candidates received while serving as substitute principals. The Court refused to hear this evidence because it is unable to compare the academic records and subjective evaluations of a disparate group of candidates meaningfully. Through an In camera inspection, the Court learned that Rutherford had compiled a commendable academic record in earning a bachelor's degree and masters degrees in public school administration and education. The Court, however, is simply unable to compare the academic records of a group of candidates of different ages, from different colleges, at considerably different time periods, and under widely different circumstances. The Court cannot conclude that a plaintiff who earned high grades at one college a few years ago is more qualified to be a secondary school principal than another applicant who earned lower grades at a different college some 15 years earlier. Presuming that academic performance is some indication of qualification to serve as a secondary school principal,
the Court does not believe that it could give weight to such comparative performances without also listening to explanations of the impact on grades of factors like part-time jobs and the relative difficulty of courses. The Court would have to discount the grades of more recent graduates due to the documented phenomenon of grade inflation. Because such comparisons are difficult, if not impossible, to make and have little probative value for individuals who are not members of the same academic generation, the Court did not admit evidence of Rutherford's academic background.
The Court also could not admit evidence of the evaluations of Rutherford and other individuals who were certified as principals and interested in permanent positions. Placing aside considerations of the right of privacy of those evaluated individuals who are not parties to the litigation, the Court is unable to compare responsibly the subjective evaluations of different candidates by different evaluators. The Court, for example, cannot conclude that a candidate who received an evaluation of "excellent" in several areas like control of classroom and ability to lead classroom discussion is more qualified than a candidate who received an evaluation of "very good" from a different evaluator at another school, before a class of different size at a different time. Quite clearly, such comparisons are beyond the ability of this Court to draw and offer generally inadequate bases for finding sex discrimination. Other less subjective criteria, like length of service as a teacher, the date of certification or the amount of substitute principalship experience, are more readily calculated and provide far better circumstantial evidence of discrimination than those criteria advanced in this case. Unfortunately, for the plaintiffs, the few items of objective criteria available to the Court in the instant case favor a finding that the August 1976 appointments were not sex based.
Other courts have encountered similar difficulties with requests by plaintiffs that they compare subjective criteria of several applicants for appointments in education to detect sex discrimination. In Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974), the court envisaged that the judicial inquiry into the subjective details of the hiring decisions of school administrators would
". . . require a faculty committee charged with recommending or withholding advancements or tenure appointments to subject itself to a court inquiry at the behest of unsuccessful and disgruntled candidates as to why the unsuccessful was not as well qualified as the successful. This decision would then be passed on by a Court of Appeals or even the Supreme Court. The process might be simplified by a legislative enactment that no faculty appointment or advancement could be made without the committee obtaining a declaratory judgment naming the successful candidate after notice to all contending candidates to present their credentials for court inspection and decision. This would give "due process' to all contenders, regardless of sex, to advance their "I'm just as good as you are' arguments. But such a procedure would require a discriminating analysis of the qualifications of each candidate for hiring or advancement, taking into consideration his or her educational experience, the specifications of the particular position open and, of great importance, the personality of the candidate." 502 F.2d at 1232.