Robert D. Repasky, John W. Calhoun, Asst. Attys. Gen., Madison Wis., for defendant-appellant.

Jeff Scott Olson, Madison, Wis., Karen MacRae Smith, EEOC, Washington, D.C., for plaintiff-appellee.

Before SWYGERT and PELL, Circuit Judges, and BAKER, District Judge.

BAKER, District Judge.*

This is an appeal from a judgment of the district court awarding the plaintiff back pay, equitable relief, attorneys' fees, and costs in a sex discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. and 2000e-5.

After a trial lasting five days the district court found that the defendant had discriminated against the plaintiff on the basis of sex in not promoting her to the position of Education Administrator I. The court further found that the defendant had unlawfully retaliated against the plaintiff because of her public assertion of her right not to be discriminated against.

In addition to awarding back pay, attorneys' fees and expenses to the plaintiff, the district court ordered the defendant to offer to the plaintiff the next available position commensurate with her qualifications. It further ordered the defendant to expunge from the plaintiff's personnel records the performance evaluation which the court found to have been an act of retaliation and directed that the State Superintendent of Public Instruction personally and publicly deliver the unlawful evaluation to the plaintiff for her personal destruction.

Four claims of error are raised on appeal. They are:

(1) Were the factual findings of the trial judge clearly erroneous;

(2) Did the trial judge correctly apply McDonnell-Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), with regard to allocation of the burden of proof;

(3) Did the trial judge abuse his discretion in ordering the defendant to expunge the joint evaluation of the plaintiff from the defendant's records and ordering the State Superintendent to publicly and personally deliver this evaluation to the plaintiff;

(4) Was the award of attorneys' fees excessive?

We affirm with the exception of that portion of the equitable relief ordering personal delivery of the retaliatory evaluation by the State Superintendent to the plaintiff.

* The record reveals that the plaintiff, Dr. Sara Sherkow, a female, applied for promotion to the position of Education Administrator I on January 29, 1974. The plaintiff was first employed by the defendant in May, 1972, as a Planning Analyst in the Planning Division of the Department of Public Instruction.

The plaintiff, who holds a degree of Doctor of Philosophy in educational administration, has substantial classroom teaching and administrative experience. She worked for several years on the development of programs for disadvantaged underachievers in Milwaukee inner city schools. She has served in an administrative position under a vice-president of the University of Wisconsin and has held an administrative post in a corporate educational services agency in Beloit, Wisconsin, where she worked on the development of programs for students with special educational needs.

Soon after her employment by the defendant, the plaintiff took a leave of absence to seek election as State Superintendent of Public Instruction. She was not elected and subsequently returned to her position in the Planning Division.

While the plaintiff was working in the Planning Division, the Wisconsin Legislature funded a Special Educational Needs Program (SEN). The program, which was to be administered by the State Superintendent, was intended to provide special educational needs projects for public school children who, due to cultural, social, or economic deprivation, were underachievers. Dr. Sherkow was appointed to a committee charged with organization and planning of the Special Educational Needs Program. She was heavily involved in the development of the program and was given substantial responsibilities in connection with it.

In September, 1973, the position of Education Administrator opened up in the newly developing SEN. Dr. Sherkow applied, but the de facto head of the program, Dr. Donald Anderson, was appointed. The plaintiff makes no contention about that appointment. With Dr. Anderson's consent, the plaintiff was appointed an Educational Consultant I in SEN and as such became second in command under Dr. Anderson.

Soon after his appointment Dr. Anderson was offered a position with the United States Army. He accepted and admittedly spent a great deal of time getting his personal affairs in order. He was not available very much, and Dr. Sherkow was left in charge. On January 29, 1974, the plaintiff applied to be appointed to fill the vacancy left by Dr. Anderson's departure. The defendant, under the existing rules, could have appointed Dr. Sherkow because she had previously applied, but chose instead to seek new applicants.

Six other candidates in addition to Dr. Sherkow applied. An examination was given, and a Dr. Pennington was ranked first, Dr. Sherkow second, and Dr. John Lawrence third. Each of the three was interviewed. The job was offered to Dr. Pennington who declined. The defendant then passed over Dr. Sherkow and appointed Dr. Lawrence, a male. This, the district court concluded, was a result of disparate treatment of the plaintiff based upon her sex.

After Dr. Sherkow was denied appointment in favor of Dr. Lawrence, she filed a complaint with the Equal Employment Opportunity Commission, and the defendant was notified of the charges. Then, as the trial judge found "an extraordinary thing happened. For the first time in the entire history of the Department as far as anyone can remember, three administrators prepared a job evaluation of one subordinate." The evaluation of the plaintiff was a remarkable downgrading in comparison to her former evaluations and was conducted by persons who had very little first-hand basis for their opinions.

In addition to the poor evaluation, the defendant undertook to extend the plaintiff's period of employment as a probationer, an act which the Department admits was improper and contrary to the law of Wisconsin. The trial court found these two acts, the evaluation and the illegal extension of probation, to be a candid exercise in vindictiveness and retaliation.

II

We turn first to the defendant's assertion that the findings of fact made by the district court were clearly erroneous. The disputed findings are: (1) that the plaintiff was better qualified for the position of Education Administrator I than Lawrence, the successful male applicant, and (2) that the plaintiff was not appointed to the position because of her public statements on sex discrimination and women's rights.

It is axiomatic that the trial court's findings may only be set aside if clearly erroneous and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Fed.R.Civ.P. 52(a), City of Mishawaka v. American Electric Power Co., 616 F.2d 976, 979-80 (7th Cir. 1980), Holsapple v. Woods, 500 F.2d 49, 51 (7th Cir. 1980), Federal Savings & Loan Ins. Corp. v. Cook, 419 F.2d 1296, 1298 (7th Cir. 1969). This case is certainly one in which a crucial consideration was the credibility of the witnesses.

The record reveals, and the district court found, that the plaintiff had higher scores than Lawrence on the qualification test administered by the defendant; that she had extensive background in the field of special education, which Lawrence did not; that she was involved in developing SEN, which Lawrence was not; and that while Lawrence had more general administrative experience, this factor had not weighed heavily in earlier selections for the same position.

The trial judge specifically found the testimony of Dr. Anderson, one of the defendant's key witnesses, on the question of the plaintiff's qualifications to be disingenuous. The district court further found that Mr. Van Raalte, the Department Administrator and chairman of the interview panel, admitted that he had negative reactions to reports of the plaintiff's public statements on the subject of sex discrimination and that this affected his assessment of her qualifications for the job. There is nothing in this record which would lead us to say that the judge's findings were clearly erroneous or to substitute our judgment for his.

III

In this sex discrimination in employment action, where individual disparate treatment is alleged, it is incumbent upon the plaintiff to offer proof of the following propositions in order to establish a prima facie case.

(1) The plaintiff is a woman.

(2) The defendant had an employment vacancy which it sought to fill.

(3) The plaintiff possessed the qualifications to fill the vacancy and applied.1

(4) The plaintiff was rejected.

(5) The defendant continued to seek other applicants or fill the vacancy with a male applicant.

Variations of these elements are required in all discrimination cases and find their basis in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1972). Accord, Kamberos v. GTE Automatic Elec., Inc., 603 F.2d 598, 601 (7th Cir. 1979), Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir. 1977).

If the plaintiff satisfies that burden, the order and allocation of proof then require the defendant "to articulate some legitimate, nondiscriminatory reason for the (plaintiff's) rejection." McDonnell-Douglas Corp. v. Green, supra, at 802, 93 S.Ct. at 1824; Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978). That requirement is satisfied if the defendant goes forward with evidence and " 'explains what he has done' or 'produce(s) evidence of legitimate nondiscriminatory reasons.' " Board of Trustees v. Sweeney, 439 U.S. 24, 25 n.2, 99 S. Ct. 295, 296, 58 L. Ed. 2d 216 (1978).

The order of proof then would impose upon the plaintiff the burden of proving that the reasons advanced were a pretext and that a motivating or substantial factor in the defendant's decision was discrimination and but for that discrimination the plaintiff would have been appointed. McDonnell-Douglas Corp. v. Green, supra, at 804-05, 93 S.Ct. at 1825. See also Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1976). Throughout this paradigm the ultimate burden of persuasion on the issue of discrimination remains with the plaintiff, who must convince the court by a preponderance of the evidence that he or she has been the victim of discrimination. See Board of Trustees v. Sweeney, supra, at 24-25 n.1, and at 27 (Stevens, J., dissenting).