Kovich v. Mansfield State College
Kovich v. Mansfield State College
Opinion of the Court
Opinion by
This appeal follows an order of the Tioga County Court of Common Pleas which ruled in favor of Mansfield State College, et al., (the College) in a sex discrimination suit brought by Ruth H. Kovich. She appeals under Section 5 of the Pennsylvania Human Relations Act (Act), Act of October 27,1955, P.L. 744, as amended, 43 P.S. §955.
Mrs. Kovich was a member of the faculty of the Department of Home Economics of the College from September 1966 to May 1969. She was awarded tenure February 24, 1969, effective in the 1969-70 academic
Mrs. Kovieh applied for and received a temporary appointment for the spring semester for the 1970-71 academic year in the home economics department. She applied for and received a full-time temporary appointment in the same department for the 1971-72 academic year for the spring semester. Mrs. Kovieh again applied for and received a temporary full-time appointment for the entire academic year 1973-74.
On November 12, 1973, Mrs. Kovieh applied for a permanent full-time position teaching home economics in the Department of Education. The College intended to fill the position for the spring semester 1974. Mrs. Kovieh, however, was not awarded the position. She was unsuccessful because the College, as advertised, expressed a preference for candidates who held doctoral degrees. The successful candidate held a doctorate in home economics education whereas Mrs: Kovieh held a master’s degree and many additional credit hours but not a doctoral degree.
:-0n April 2, 1974, Mrs. Kovieh applied for a permanent position in home economics education for the 1974-75 academic year. The College, subsequently, reclassified the position from permanent to temporary status. Mrs. Kovieh applied for this position after it was reclassified. She, however, was not the successful candidate. The College, as advertised, expressed a preference for a candidate with a doctoral degree or a candidate close to the completion of doctoral work.
She applied for and received a temporary, part-time appointment for the spring semester of the 1974-75 academic year. She made no application either for temporary or permanent employment in the Department of Home Economics of the College after the temporary, part-time appointment in the spring semester of 1975.
At the trial court hearing, Mrs. Kovich claimed that an “anti-nepotism” policy against employment of husbands and wives existed at the College. She based this claim, in part, on a memo issued May 27, 1969, by then College president, Lawrence Park. The memo concerned all aspects of the faculty hiring process including the contents of employment applicant vita files and scheduling of applicant interviews. It read, in part:
In general, I hope we can recruit from a broad spectrum of institutions. Graduates of our own college should not be considered unless they are clearly outstanding and have had significant experience and education outside Pennsylvania. I hope, too, that we will have fewer husband/ wife appointments. Exceptions are possible when the fields are different and the fields are difficult to recruit. (Emphasis added.)
The trial court found the College had not implemented a policy whereby a husband or wife of a teacher would not be eligible for employment. It concluded that an anti-nepotism policy based on marital status is not discriminatory per se and that Mrs. Kovich failed to meet her burden of proof that the policy of the College was discrimination based on sex. Subsequently, Mrs. Kovich appealed to this Court.
*180 Section 5 of the Act provides:
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification . . .
For any employer because of the . . . sex, . . . of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against •such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.
48 P.S. §955. We must determine whether a preponderance óf the evidence presented by Mrs. Kovich indicates that she has been discriminated against because of her sex. We do not believe she has met this burden.
The thrust of Mrs. Kovich’s argument is that the College adopted an “anti-nepotism” policy which violated the Act and discriminated against her when she sought permanent employment at the College. The policy’s effect, she states, is to deny employment to the wife and not to the husband.
In our view, the College did not adopt an anti-nepotism policy. Mrs. Kovich had been hired on a temporary basis which reveals, at least, that if this policy existed, it was not applied to her regarding those positions. In any event, her application was accepted for permanent positions by the Home Economics Department chairman despite the fact the college had advertised and preferred a person with a doctoral degree or credits toward a doctor’s degree. Although Mrs. Kovich thought she was qualified, the College demonstrated reasons why it desired an individual
Assuming, arguendo, that an anti-nepotism policy did exist, Mrs. Kovich failed to meet her burden of proving discrimination. To prove a prima facie case of discrimination one must show that she is a member of a protected class and had applied for a job for which she is qualified; that her application was refused and the employer continued to seek other applicants of equal qualifications. Once this burden is met, it shifts to the employer to demonstrate that the applicant was not the best qualified. Blackburn v. Pennsylvania Human Relations Commission, 62 Pa. Commonwealth Ct. 171, 435 A.2d 671 (1981). In the instant case, the burden does not shift because Mrs. Kovich applied for a job for which she did not meet •the required qualifications and the College continued to seek applicants who did meet the qualifications. Even if she had met her burden of proving a prima facie case of discrimination, the College could have demonstrated that she was not the most able and most competent candidate for the position. Luzerne County Community College v. Pennsylvania Human Relations Commission, 33 Pa. Commonwealth Ct. 121, 381 A.2d 201 (1977).
Finally, Mrs. Kovich argues that the trial court erred when it refused the admission into evidence of a memorandum sent by the home economics department chairman to her. She asserts that the memorandum confirmed the existence of an anti-nepotism policy at the College. She claims that the memorandum was properly authenticated and should have been admitted. We disagree. For the memorandum to be admitted, a qualified witness should have testified to its identity and mode of preparation. Mrs. Kovich failed to show that the maker of the memorandum was unavailable to testify in some manner. Had the memorandum been admitted into evidence, the College would have been
For the foregoing reasons, we affirm the order of the trial court.
Order
Now, July 24,1984, the order of the Court of Common Pleas of Tioga County, dated December 21, 1982, at No. 1480 C. D. 1977, is affirmed.
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