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KANSAS STATE UNIV v. KAN. COMM'N ON CIVIL RIGHTS

February 9, 1990.

KANSAS STATE UNIVERSITY, Appellant,
v.
KANSAS COMMISSION ON CIVIL RIGHTS, Appellee.



*fn1 REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated June 6, 1990, pursuant to Rule 7.04 (1989 Kan. Ct. R. Annot. 34).

Kansas State University (KSU) appeals a trial court ruling upholding the order of the Kansas Commission of Civil Rights (KCCR), which found KSU violated the Kansas Act Against Discrimination (K.S.A. 44-1001 et seq.) and the Kansas Age Discrimination

[14 Kan. App. 2d 430]

      in Employment Act (K.S.A. 44-1111 et seq.) when it failed to hire Frederick O'Neill (complainant) for a position created in 1984 of certification officer of teacher education (CO) because of his sex (male) and age (59). Jerry G. Horn testified the position announcement, which was approved by the affirmative action office and advertised in a variety of appropriate sources, described the principal duties of the CO to include, among others: examining programs and transcripts of students to insure requirements were completed to meet certification, maintaining certification records, advising undergraduate teacher education students, analyzing transcripts of students who were not in teacher education but who wished to be, and serving as a college of education representative within the university and across the state.

The position required a Bachelor of Science degree, with a Masters of Science degree preferred, in education or a closely related area. Other qualifications included knowledge and experience in record keeping and reporting procedures, ability to advise undergraduate students and/or teach in an area in career related teacher education programs, written/oral communication and public relations skills, and knowledge of office administrative practices.

Seventy-eight persons applied for the position, thirty-eight female and forty male. The search committee selected four of these as finalists to be interviewed, including complainant. Candace Hayden, approximately 20 years younger than complainant and female, was hired. O'Neill filed a complaint with the KCCR, contending that Hayden was less qualified than he and that adverse inquiries and comments were made about his age during interviews. O'Neill also complained that Margaret Bloomquist, director of the center for student services whose pending retirement led to the creation of the CO position, had indicated a preference for a female during the interview.

  A hearing on O'Neill's complaint was held before a KCCR hearing officer. At that hearing, evidence was admitted which showed that O'Neill had applied for, but was not selected for, two other KSU positions prior to his nonselection for the CO position. KSU objected to the introduction of this evidence. The hearing officer's opinion was approved by a KCCR chairperson.

[14 Kan. App. 2d 431]

      The KCCR found in favor of complainant, citing K.S.A. 44-1009(a)(1) and 44-1113(a)(1), and awarded him $42,009.43 in lost wages. Rehearing was denied, and KSU appealed to district court. After a de novo review of the record, the trial court affirmed the award of the hearing officer. A new trial was denied, and KSU perfected the present appeal.

  The scope of review of a trial court's decision concerning opinions rendered by the KCCR has recently been addressed by the Kansas Supreme Court. In Nurge v. University of Kansas Med. Center, 234 Kan. 309, Syl. ¬∂ 6, 674 P.2d 459 (1983), the court held that, when a district court is reviewing the proceedings of the KCCR, the duty of the district court is to "conduct an independent and thorough examination of the record and make independent findings of fact and conclusions of law." In that case, the district court had compelled witnesses to re-testify, thereby disregarding the record on review. The Supreme Court found there was no statutory authority for such a departure from the record of the KCCR. 234 Kan. at 317. The court further held that "[f]ailure to consider the entire record . . . constitutes reversible error." 234 Kan. at 318.

  In Woods v. Midwest Conveyor Co., 236 Kan. 734, 697 P.2d 52 (1985) (Woods II,) the Supreme Court addressed the scope of appellate review for appeals from a trial court's review of KCCR orders. In that case, appellant Midwest argued that, since the trial court under Nurge must make its review from the record rather than from live testimony, the appellate scope of review should be different. The court rejected that argument, stating:
"We conclude, therefore, the general rule relative to appellate review applies in this case. Thus, where the trial court has made findings of fact and conclusions of law in a trial de novo arising from a Kansas Commission on Civil Rights proceeding, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law." 236 Kan. at 736.
Further, the Woods II court stated: "Under the proper scope of review previously discussed, our role on appeal is to determine whether there is substantial competent evidence to support the findings of discriminatory conduct and the conclusion the requisite prima facie case had been presented." 236 Kan. at 737.

[14 Kan. App. 2d 432]

     

  The court also reiterated its holding in City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976), that "the findings adopted by the trial court will not be set aside unless they are clearly erroneous." 236 Kan. at 736.

  It is clear that this court's scope of review is to determine if, when viewing the evidence in the light most favorable to complainant, there is substantial competent evidence to support the trial court's findings of fact and whether these findings are sufficient to support the trial court's conclusions of law. "`[S]ubstantial evidence' is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion." Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).

  The first issue presented is whether the trial court erred in its admission and treatment of evidence concerning complainant's nonselection for earlier KSU positions. The KCCR hearing officer admitted the evidence, stating that KSU's objection went to its weight rather than its admissibility. The trial court, in its findings, noted it allowed such evidence as "reasonable background facts."

  It is uncontroverted that when O'Neill filed his complaint with the KCCR he did not allege discrimination in his nonselection for either of the two prior positions. Both positions were filled more than six months before O'Neill filed his complaint. K.S.A. 1989 Supp. 44-1005(i) requires the timely filing of complaints: "Any complaint filed pursuant to this act must be so filed within six months after the alleged act of discrimination, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it will be from the last act of discrimination." Further, O'Neill did not complain of a continuing pattern or practice of discrimination against males or older individuals in his complaint.

  KSU contends under Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982) (Woods I,) that, unless O'Neill was making a case for a continuing violation, the evidence of nonselection should not have been admitted because six months had passed and O'Neill had not filed a complaint on his failure to secure those jobs. In Woods I, the court held:

  "We hold a charge of discrimination is required by K.S.A. 44-1005 to be filed with the Kansas Commission on Civil Rights within six months after

[14 Kan. App. 2d 433]

      the alleged act of discrimination occurred unless the act complained of constitutes part of a continuing pattern or practice of discrimination, in which event the charge must be filed within six months after the last act of discrimination occurred." 231 Kan. at 765.

 Unlike Woods, who was complaining of a continuing violation, there is no evidence in the record that O'Neill ...


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