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Monday, March 16, 2009

IN THE UNITED STATES COURT OF APPEALS/ Appeal No. 09-1131

David Torgerson and Jami Mundell,
Plaintiffs-Appellants,
v.
City of Rochester
Defendant-Appellee,
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posted by Bob at Monday, March 16, 2009

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Appeal From United States District Court
For the District of Minnesota
Civil No. 07-CV-1968 (JNE/JJG)
PLAINTIFFS-APPELLANTS
BRIEF WITH ADDENDUM
Leslie L. Lienemann
Celeste E. Culberth
CULBERTH & LIENEMANN, LLP
1050 UBS Plaza
444 Cedar Street
St. Paul, MN 55101
(651) 290-9300
ATTORNEYS FOR PLAINTIFFS-APPELLANTS

STATEMENT OF ISSUES PRESENTED FOR APPEAL
Did the District Court err in granting summary judgment and dismissing
Appellants’ claims of gender and race discrimination as a matter of law?
Most apposite cases:
Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000)
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)
St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987)

REQUEST FOR ORAL ARGUMENT
Appellants request that oral argument because they appeal from the District
Court's grant of summary judgment. A de novo review of a grant of
summary judgment requires detailed analysis of the facts of the case. Oral argument is critical to a full understanding of the fact issues presented.
Appellants request an oral argument of twenty minutes.
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STATEMENT OF THE CASE
This case was brought by two individuals, one woman, Jamie
Mundell, and one male Native American, David Torgerson, who were
rejected for hire as firefighters by the City of Rochester, Minnesota. In the
process of hiring seven new firefighters, the City of Rochester passed over
better qualified minority and female applicants (Torgerson, Mundell and
applicant Jodi Olson) and hired unqualified, and less qualified white male
applicants.
The City had accepted funds from a federal grant to fund three of the
seven firefighter positions. The terms of the grant required the City to recruit
and hire women and racial minority applicants whenever possible.
Torgerson, Mundell and Olson applied, were certified qualified and placed
on the hiring eligibility list by the City’s Fire Civil Service Commission.
The City hired seven white male applicants, some of whom did not meet the
minimum qualifications of the job at the time they were placed on the
eligibility list. A year later, the City hired five more white males from the
same list.
Torgerson and Mundell brought claims of race and sex discrimination
under Title VII of the Civil Rights Act of 1964, the Minnesota Human
Rights Act and Section 1981. The City brought a motion for summary
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judgment, and the District Court granted the City’s motion.
FACTS BEFORE THE DISTRICT COURT
City of Rochester Fire Department History
The City of Rochester has just over one hundred full time professional
firefighters. Docket 23 at Ex. 4 p. 9; App. 189-192. It did not hire its first
female firefighter until 1996. Docket 23 at Ex. 4, pp. 19, 29-30, 38-52; App.
189-192. At that time, there was a great deal of resistance in the department
to hiring women. Docket 23 at Ex. 4, pp. 38-52; Docket 25 at Ex. A, pp 28-
29. Then-Fire Chief Dave Kapler held mandatory meetings to discuss all of
the concerns of the male firefighters relating to hiring women. Docket 23 at
Ex. 4, pp. 41-52. In its history, the City has hired only two women. Docket
23 at Ex. 4, pp. 19, 29-38, 58; App. 189-192. Since that time, derogatory
names like “cunt” and “bitch” have been common among firefighters.
Docket 25 at Ex. A, pp. 30-32; Docket 23 at Ex. 6, pp. 18-19.
In its history, the City of Rochester has only hired three non-white
firefighters: one Native American who is no longer on the Department; one
Asian, who is no longer with the Department; and one African-American.
Docket 25 at Ex. A, pp. 32-37; Docket 23 at Ex. 4, pp. 21-26; App. 189-192.
Racial epithets are common at the fire department. Docket 25 at Ex. A, pp.
32-33.
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Currently, of its 105 members, there are two female firefighters
(1.9%) and one non-white firefighter (0.95%). App. 189-192. The 2000
census reports that, of individuals in the 18-39 year old age group in
Rochester, 45% are women and 14% are minority. App. 193.
2005-2006 Hiring Process
In the fall of 2005, the City of Rochester engaged in a hiring process,
the result of which was to certify a list of eligible candidates for open
firefighter positions. App. 170-182; 215-16. The Fire Department’s hiring
process required it to hire from an eligibility list, which was to remain in
effect for two years. Docket 23 at Ex. 4, pp. 49-50; App. 168-69.
Originally, the City intended to fill six open positions, and later added
a seventh position. App. 172-173. The City had received funding for three
positions through a federal Staffing for Adequate Fire and Emergency
Response (“SAFER”) grant. App. 170-182; 215-16. By applying for and
accepting funds through the grant, the City agreed to abide by the terms of
the grant. The grant includes a list of “Grantee Responsibilities,” which
included the following: “Grantees, to the extent possible, will seek, recruit,
and appoint members of racial and ethnic minority groups and women to
increase their ranks within the applicant’s department.” App. 179-182.
When the Fire Commission certified the eligibility list, on November
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22, 2005, there were two women and one Native American on the list: Jodi
Olson, Appellant Jami Mundell, and Appellant David Torgerson. App. 168-
69 . All of the others on the list were white males. App. 168-69; 189-92.
Throughout the hiring process, City officials referred to the women and
Native American as the “protected class” applicants. App. 170-71, 176.
David Torgerson is a Native American male, and a member of the Lac
Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin,
where his mother is a tribal elder. Docket 23 at Ex. 9, pp. 72-73. At the
time of his application to Rochester, he was volunteer firefighter. Docket 23
at Ex. 9, pp. 14-16; App. 1-67. He had completed three years of college
toward his degree in Fire Protection. Docket 23 at Ex. 9, pp 10-11; App. 1-
67. He had completed Fire Fighter I and Fire Inspection courses. Docket 23
at Ex. 9, pp. 18-20; App. 1-67. He had received his certifications as an EMT
from the National Registry of Emergency Medical Technicians (NREMT)
and the Minnesota Emergency Medical Services Regulatory Board. Docket
23 at Ex. 9, pp 18-20; App. 1-67.
Jami Mundell is a female. At the time she applied for a firefighter
position with the City, she had an Associate Degree in Business
Management and had earned a Diploma in Intensive Care Paramedic.
Docket 23 at Ex. 5, pp. 7-9; App. 68-117. She had a NREMT certificate, and
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held her EMT-Basic license. Docket 23 at Ex. 5, pp. 7-9; App. 68-117. She
had completed Fire Fighter I and Fire Fighter II courses. Docket 23 at Ex. 5,
pp. 7-9; App. 68-117.
Applicant Jodi O’Shaughnessy Olson is a female. At the time of her
application to be a firefighter for the City of Rochester, she held both an
associate and a bachelor degree. App. 118-167. She had a NREMT
certificate, and held her EMT-Basic license. Id. She had completed Fire
Fighter I and Fire Fighter II courses. Id. She had completed 592 hours of
class room and practical training relating to fire fighting and emergency
medical services, the equivalent of three years’ training for a career
firefighter. Id. She had been on “ride-alongs” with the Rochester fire
department. App. 118-167; Docket 23 at Ex. 5, pp. 82-87.
Fire Civil Service Commission Recommends
Protected Class Applicants for Hire
The Fire Civil Service Commission met on January 18, 2006. App.
174-75. At that meeting, Human Resources Director Linda Gilsrud
explained the requirement of the SAFER grant, and informed the
Commission that there were three protected class applicants who had been
certified on the eligibility list. Id.
Gilsrud reminded the Commission that numerical rankings did not
indicate a difference in qualifications, as actual score disparities were small.
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App. 174-75. The following analysis demonstrates the narrow differences in
actual score disparities:
Most of the top ranking hired candidates received veteran’s preference
points; five for service, and ten for disabled status (which applied only to the
candidate ranked number 2, Adam Wallin). Taking out veteran’s preference
points, many of the candidates would fall significantly in ranking. For
example: hired candidate Wallin would fall from 2 to 27; hired candidate
Kuntz would fall from 6 to 20. While giving these candidates veteran’s
preference points was appropriate, this calculation demonstrates the small
point spreads among ranked candidates.
The City’s ranking process included written tests, an agility test and a
panel interview. The panel interview was weighted at 40% of the score.
Comparing the candidate scores after the objective portions of the test also
demonstrates the closeness of the candidates in actual scores: Considering
only the objective portions of the hiring process, which include the written
and physical agility tests, Torgerson’s weighted score was 50.85, which put
him ahead of hired candidates Mills (50.35) and Peterson (50.55) and tied
with hired candidate Kuntz (50.85). Mundell’s objective weighted score of
50.25 put her within three tenths of a point of hired candidate Peterson
(50.55).
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Because the Commission had placed such a heavy emphasis on the
interview process, weighing it as 40% of the final score, candidate rankings
moved dramatically as a result of the interview process. For example, hired
candidate Knapp was ranked 30 after the objective phase, but was advanced
to 13 after the interview process (with a raw score of 129)1; hired candidate
Wallin was ranked 35 after the objective testing, but was advanced to 2 after
the interview process (with a raw score of 118); hired candidate Thompson
was ranked 31 after the objective testing, but was advanced to 3 after the
interview process (with a raw score of 127); hired candidate Meyer was
ranked 34 after the objective testing process, but was advanced to 5 after the
interview process (with a raw score of 131); hired candidate Kuntz was
ranked 45 after the objective process, but was advanced to 6 after the
interview process (with a raw score of 130).
By comparison, Jodi Olson was ranked 49 after the objective testing,
but was moved only to 37 after the interview process (with a raw score of
122). So, with a lower score than Olson’s, hired candidate Wallin vaulted
from 35 to 2; Olson moved only from 49 to 37. Compare App. 194-95; App.
196-208; 209-210. On the City’s own spreadsheet, it recorded Wallin’s
1 The City’s summary lists raw scores for each applicant that do not match
the actual raw scores indicated on each interview score sheet. Appellants
have calculated the actual points reflected on each interview score sheet.
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interview score as lower than Olson’s, and yet advanced Wallin from 30 to 2
and Olson only from 49 to 37.
This evidence clearly shows how much the subjective interview
process impacted each candidate’s ranking and how little disparity there
actually was in the true “raw” scores.
Fire Commissioner John Withers was on one of the interview panels,
including the panel who interviewed David Torgerson. Deputy Chief Slavin
was on the other interview panel, including the panel who interviewed Jodi
Olson. App. 194-95; 211. Fire Commissioner Powers interviewed Jami
Mundell, even though he was not supposed to be on the interview panel. Id.
In the past, the City had not always hired based upon list ranking,
specifically because of the small disparity in actual scores. Chief Kapler had
publicly supported this practice and said, “The fact that Mulholland and
Dealing finished lower on the list of candidates doesn’t mean their skills are
lacking. Their ranking doesn’t matter, I would have hired them anyway.”
App. 729-30.
Gilsrud also reminded the Commission that it had hired one African
American, Chris Ford, who was a valued member of the Department. App.
174-75. Fire Chief Kapler, who was in attendance at that meeting, informed
the Commission that the City had hired two other minority candidates who
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had not remained with the department. Id.
At that January 18 meeting, the Fire Commission unanimously voted
to send the names of the three protected class candidates to the Board for
hire. App. 174-75. The City’s hiring process required the Fire Commission
to recommend three names for each position. App. 174-75. The Fire
Commission did not discuss recommending any of the three protected class
candidates for any position other than the last open position, despite the fact
that three of the seven open positions were funded by the SAFER grant.
App. 174-75, 179-82. Rather than recommending one or more of the three
for each SAFER-funded position, the Commission voted to recommend
three white males and the three protected class candidates for the final open
position. App. 174-75; Docket 23 at Ex. 3, pp. 48-57. Traditionally, the
City Council hired the first name recommended for each position. By
recommending all three protected class applicants for only one position,
along with three white men, the Commission would guarantee that--at most--
only one of them would be hired and most likely none would be hired.
After the January 18, 2006 meeting, two of the three fire
commissioners completed forms on which they indicated that they
recommended Olson, Mundell and Torgerson for hire. App. 64, 73, 125,
183-88. Commissioner Field did not complete the form, although he had
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completed the form for the other hired candidates, except Thompson. App.
64, 73, 125, 229, 271, 325, 378, 405, 440, 463, 503, 555, 601, 649, 649.
Fire Chief Applied A Higher Standard to Protected Class
Applicants and Rejected Them for Hire
After the Fire Commission voted unanimously to recommend all three
protected class members to the City Council, it sent a list of candidates to the
Fire Chief, for the “Fire Chief’s Interview,” the last step in the hiring
process. App. 174-76. The list of candidates included nine white male
candidates, along with Olson, Mundell and Torgerson. In order to fill the
seven open positions, under the City hiring process, the Commission and the
Chief had to approve nine candidates. Docket 23 at Ex. 4, pp. 76-92.
The Fire Chief initially determined that four of the white male
candidates were not recommended; one because he did not show up for his
interview; one because he had been convicted of vehicular homicide and did
not possess a current National Registry of Emergency Medical Technicians
(“NREMT”) certification; and two others because they did not have their
NREMT certifications, and were not registry eligible, at the time they were
placed on the eligibility list because they had either not completed required
coursework or had not passed the required exam. Docket 23 at Ex. 4, pp. 76-
92; Ex. 2, pp. 17-20; App. 176, 217-223. Chief Kapler then requested
additional candidates to interview, despite the fact that he could have
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excluded the unqualified white males and still had a sufficient number of
applicants to recommend for hire, had he recommended the protected class
candidates. Docket 23 at Ex. 4, pp. 79-80; App. 212-14.
Kapler had interviewed Torgerson, along with the white candidates,
on February 1, 2006. On February 2, 2006, Chief Kapler asked to interview
two additional candidates. App. 212-14. On February 7, 2006, he asked for
yet another two candidates, which included Battalion Chief Rick Lovett’s
son, Tom Lovett, who was ranked 12 on the list (Lovett had been ranked 44
after the objective phase and leaped to 12 after the subjective panel
interviews). Id.
On February 11, 2006, Plaintiffs, and Olson, were sent letters
informing them that they were among the “top candidates” for the seven
positions. App. 46, 71, 126
Kapler then changed his recommendations with respect to the
unqualified candidates, and recommended them for hire. App. 212-14 He
refused to recommend the protected class candidates for hire. App. 174-77;
215-16; Docket 23 at Ex. 4, pp. 76-92. He called them “unfit.” Docket 23
at Ex. 1, pp. 36-37.
Hired candidate Jeremy Meyer, who was certified on the eligibility
list on November 22, 2005, had failed his EMT written test on October 12,
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2005, with a score of 64%. App. 217. At the time he was certified as
eligible for hire, he had not passed the exam. App. 218. In order to be
“registry eligible” under NREMT regulations, an applicant has to have
successfully completed the necessary coursework and passed the
examination. App. 738-40. Meyer had not done so. Thus, at the time he was
ranked Number 5 on the eligibility list, he was ineligible for hire, did not
meet the minimum requirements of the job, and should not have been on
eligibility list.
Hired candidate Dylan Mills did not even complete his EMT
coursework until December 15, 2005. App. 219. Thus, he was ineligible for
hire and did not meet the minimum job qualifications at the time he was
ranked Number 10 on the list.
Hired candidate Eric B. Thompson, ranked Number 3 on the list, in
addition to having been convicted of vehicular homicide and attempted
vehicular homicide, had let his EMT registration lapse. App. 220-23. He,
also, was ineligible for hire at the time he was ranked Number 3 on the list.
Fire Chief Kapler admits that he applied different (higher) standards
to Mundel1, Olson and Torgerson than those he applied to the white men
during the “Chief’s interview” portion of the hiring process. App. 174-76;
Docket 23 at Ex. 4, pp. 76-92. Despite the fact that Kapler was present
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during the January 18, 2006 Fire Civil Service Commission meeting at
which the Commission voted to recommend Olson, Mundell and Torgerson
for hire, Kapler viewed these three candidates as less qualified. App. 174-
75; Docket 23 at Ex. 4, pp. 76-92. As to the white male candidates, despite
his view that several did not meet the minimum requirements for hire, he
applied the following standard: “we’re looking to see is there anything about
this individual that might be a red flag.” Docket 23 at Ex. 4, p. 97.
Essentially, the position was theirs to lose. Docket 23 at Ex. 4, p. 99. As to
Mundell, Olson and Torgerson, however, he applied the following standard:
“Is there something about those candidates that would elevate them to the
level of being better than the candidates who were at the top of the list.”
Docket 23 at Ex. 4, p. 99. Yet, Kapler never compared Olson’s, Mundell’s
or Torgerson’s qualifications to those of the white men he recommended for
hire. Docket 23 at Ex. 4, pp. 101-102; App. 1-167; 220-728.
Deputy Chief Slavin also had input into the Chief’s recommendation.
Docket 23 at Ex. 4, p. 85. He testified that various of the white male
candidates were “standouts” based on attributes such as the following: had
done ride-alongs with a fire department (Lovett, Knapp); applied with other
departments in state (Knapp); had a “degree” (Knapp); had military
background and desire to be a career firefighter (Meyer); had safety
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experience (Goetzman); had experience as a firefighter (Busch); was a
college graduate (Christie); had education at the University of Minnesota
(Slavin could not recall if he had a degree, but he was the captain of the
hockey team)(Mills); father was a firefighter (Mills) and prior experience
with DNR forestry division (Mills). Docket 23 at Ex. 8, pp. 43-65.
Slavin testified that Mundell was not a “standout,” despite the fact that
she had applied with other departments, had done ride-alongs, and had a
degree in Intensive Care Paramedics. Docket 23 at Ex. 8, pp. 32-36; Ex. 5,
pp. 7-9, 22-24; App. 68-117. Of the twelve hired candidates, only two had
Paramedics degrees. App. 220-728
Slavin testified that Torgerson was not a “standout,” despite the fact
that he was (and is) a part time firefighter, his father was a career firefighter,
he had applied to other departments, and he had completed three years
toward a degree in Fire Protection. Docket 23 at Ex. 8, pp. 36-41; Ex. 9, pp.
9-20; App. 1-67. Of the twelve hired candidates, seven had no prior
firefighting experience. App. 220-728. Of the twelve hired candidates, eight
had completed no course work toward a degree in Fire Protection or Fire
Science. Id.
Slavin testified that he could not recall whether Olson was a standout,
despite the fact that she had 592 hours of training (the equivalent of three
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years’ training), had done ride-alongs, and she had a college degree. Docket
23 at Ex. 8, pp. 85-87; App. 118-167. No other applicant had as many hours
of training as she did. App. 220-728.
When asked whether there was any objective reason that he did not
recommend Mundell, Torgerson and Olson for hire, Chief Kapler replied,
“No.” Docket 23 at Ex. 4, pp. 85-86.
Based solely on Chief Kapler’s recommendations, and in spite of the
unanimous vote of the Fire Commission to recommend the three protected
class candidates for hire, the Fire Commission sent the names of nine white
males to the City Council (three for each open position), which resulted in
the hiring of seven white males. When questioned by the City Council about
why he did not recommend any of the protected class candidates for hire,
Chief Kapler said they were unfit. Docket 23 at Ex. 1, pp. 36-37. Yet,
Kapler admitted that none of the three protected class candidates is unfit.
Docket 23 at Ex. 4, p. 180.
City Councilmember Carr Finds Discrimination
After the City voted to accept the recommendations for hire,
Councilmember Pat Carr learned that hired candidate Eric Thompson was a
convicted felon. Docket 23 at Ex. 1, pp. 9-10. Thompson had been
convicted of vehicular homicide after driving drunk. Docket 23 at Ex. 3, pp.
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104-111. Department hiring regulations include categories of conduct for
which the Commission may disqualify any candidate, including criminal
conviction. App. 741-43.
Carr then learned that several hired candidates had not been eligible
for hire because they lacked the NREMT certification at the time the
eligibility list was certified. Docket 23 at Ex. 1, pp. 55-56, 64-66, 100. He
then learned that three of the positions had been funded by the SAFER grant,
which required the city to appoint qualified women and minority candidates
whenever possible. Docket 23 at Ex. 1, pp. 17-18. After receiving this
information, Carr began to investigate the hiring process, and asked for an
emergency Board meeting to re-evaluate the hiring. Docket 23 at Ex. 1, pp.
17-18.
Carr called Fire Commission member Roger Field and asked him
whether he was aware of the SAFER grant. Docket 23 at Ex. 1, pp. 23-26.
Field denied knowledge of the grant, despite the fact that he was present at
the January 18, 2006 Commission meeting at which Human Resources
Director Linda Gilsrud discussed the grant. Docket 23 at Ex. 1, pp. 23-26,
62; App. 174-75. When Carr told Field the SAFER grant required the
recruiting and hiring of qualified women and minority applicants whenever
possible, Withers replied that, had he known of the requirement, “I would
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have recommended that the City not take the grant.” Docket 23 at Ex. 1, pp.
26-27. When Carr spoke with Fire Commissioner Withers and discussed
why the Commission had not recommended the protected class applicants,
but would recommend Thompson, a convicted felon, Withers told Carr that
Thompson was a “big, strong guy.” Docket 23 at Ex. 1, pp. 38-40, 101-103
In Carr’s investigation of the Fire Department hiring, he spoke with
former Assistant Fire Chief Gary Smith. Docket 23 at Ex. 1, p. 48. Smith
related to Carr that he had heard Deputy Chief Lovett say in a meeting at
which he believed Chief Kapler was present, that he did not want women on
the department. Docket 23 at Ex. 1, pp. 48-54. Chief Kapler confirmed in
his deposition that there was a great deal of resistance in the Department to
hiring women. Docket 38 at. Ex. 4, p. 38.
Despite Carr’s efforts, the City Council refused to re-evaluate the
hiring process. Docket 23 at Ex. 1, pp. 31-35. After his investigation of the
hiring process, Carr concluded that Olson, Mundell and Torgerson had been
discriminated against. Docket 23 at Ex. 1, pp. 36-37; 48-54; 85-86.
Carr testified that he had a background in statistics, had reviewed the
raw scores and rankings from the 2006 hiring, and could make no sense of
the rankings. Docket 23 at Ex. 1, pp. 79-83. He testified further that the Fire
Department weighted the subjective interview process so heavily that they
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were able to “pick and choose who they want.” Docket 23 at Ex. 1, pp. 40-
58. He noted that, for the 2007 hiring process, the City had so watered down
the objective portions of the hiring process that they were essentially
meaningless and racist. Docket 23 at Ex. 1, pp. 73-74.
2007 Hiring of Additional White Males
In August, 2007, the City hired five more applicants from the same
eligibility list—all of them white males whom Kapler had interviewed in
2006—including candidate Jeremy Zabel whom Chief Kapler had
previously not recommended. App. 174-75; 189-92. The City did not
interview Mundell, Torgerson or Olson for any of these positions. Docket 23
at Ex. 4, p. 92.
SUMMARY OF THE ARGUMENT
The District Court’s Order granting summary judgment to the City on
Appellants’ claims of discrimination blatantly disregards the standard on
summary judgment and this court’s frequent admonition that summary
judgment should seldom be granted in discrimination cases. See Peterson v.
Scott County, 406 F.3d 515, 520 (8th Cir. 2005); Bassett v. City of
Minneapolis, 211 F.3d 1097 (8th Cir. 2000). Throughout, the District
Court’s Order openly weighs evidence, declaring not that there was no
evidence supporting Appellants claims, but that the Court was not persuaded
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by that evidence or drew conclusions favoring the City’s evidence. The
granting of summary judgment in the District of Minnesota has become so
routine as to deny employees their Constitutional right to trial by jury.
Further, the District Court evaluated Appellants’ evidence under the
“pretext plus” standard rejected by the United States Supreme Court in Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). The
District Court required Appellants to set forth more than a showing of
evidence from which a jury could determine that the employer’s articulated
reasons for refusing to hire Appellants was false or not worthy of credence,
in violation of the controlling standard set forth in Reeves.
Finally, the District Court dismissed Appellant Torgerson’s Section
1981 claim for discrimination on the basis of his Native American heritage,
holding that this Court’s opinion in Zar v. S.D. Bd. Of Examiners of
Psychologists, 976 F.2d 459, 467 (8th Cir. 1992) required dismissal. Not
only does Zar not stand for the proposition that national origin discrimination
claims based on national origin or ethnicity can not be brought under Section
1981, the United State Supreme Court has held that such claims may be
brought when the claim is based on ethnicity, rather than on location of birth.
See, St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987).
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ARGUMENT
I. Summary Judgment Is Reviewed De Novo.
This Court reviews a district court’s summary judgment order de
novo. See, Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003).
II. “Reasonable Minds” Standard
A Court may not grant summary judgment to a defendant unless there
is no genuine issue of material fact in dispute and the defendant is entitled to
judgment as a matter of law. See, Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); see also, Barker v. Ceridian Corp., 122 F.3d 628, 632 (8th Cir.
1997); Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1244 (8th
Cir. 1991). The issue of material fact required to proceed to trial is not
required to be resolved conclusively in favor of the non-moving party;
rather, all that is required is that sufficient evidence supporting the claimed
factual dispute be shown to require a jury to resolve the parties’ differing
versions of the truth. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986) citing First National Bank of Arizona v. Cities Service Co.,
391 U.S. 253, 288-89 (1968).
The United States Supreme Court has many times reiterated that a
trial court may not weigh the evidence and determine the truth of the matter
on a motion for summary judgment; its sole function is to determine whether
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disputed fact issues exist. See Anderson, 477 U.S. at 2510-11; United States
v. Diefold, Inc., 369 U.S. 654 (1962). In order to grant summary judgment,
a court must find a “complete failure of proof concerning an essential
element of the non-moving party’s case.” Celotex, 477 U.S. at 323.
Summary judgment may not be granted if “reasonable minds could differ as
to the import of the evidence.” Anderson, 477 U.S. at 250-251.
The Eighth Circuit has repeatedly emphasized that summary judgment
should seldom be granted in discrimination cases. See Peterson v. Scott
County, 406 F.3d 515, 520 (8th Cir. 2005); Bassett v. City of Minneapolis,
211 F.3d 1097 (8th Cir. 2000) (collecting Eighth Circuit opinions from 1987
to 1999, authored or joined by Judges R. Arnold, Beam, Alsop, Bowman,
Heaney, Longstaff, M. Arnold, Loken, Gunn, F. Gibson, Murphy, Hansen,
Will, McMillian, Bright, Wollman, Fagg, Strom, Lay, Heaney and Larson
agreeing that summary judgment should seldom be granted in discrimination
cases); see also Davis v. Fleming Companies, 55 F.3d 1369, 1371 (8th Cir.
1995); Oldham v. West, 47 F.3d 985 (8th Cir. 1995); Hardin v. Hussmann
Corp., 45 F.3d 262, 264 (8th Cir. 1995); Crawford v. Runyon, 37 F.3d 1338,
1341 (8th Cir. 1994); Gill v. Reorganized School Dist. R-6, Festus, Missouri,
32 F.3d 376, 378 (8th Cir. 1994).
Justice Rehnquist, the author of the Celotex opinion, explained why
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summary judgment should almost never be granted in discrimination cases
in his dissent to a denial of review in a case brought under the Age
Discrimination in Employment Act (“ADEA”):
It has long been established that it is inappropriate to resolve
issues of credibility, motive, and intent on motions for summary
judgment. It is equally clear that where such issues are
presented, the submission of affidavits or depositions is
insufficient to support a motion for summary judgment. . . .
Summary judgment simply may not be granted when such
matters as the defendant’s motive and intent are questioned.
Thus in any suit where the defendant is not accorded absolute
immunity, so that the defendant’s state of mind is at issue, it
will not require an ingenious advocate to force a trial of the
case. Just as summary judgment is inappropriate in qualifiedimmunity
cases and in defamation cases, it is inappropriate
here.
Hardin v. Pitney-Bowes, Inc., 451 U.S. 1008, (U.S. 1981)(Rehnquist, J,
dissenting from denial of writ of certiorari).
Despite the overwhelming judicial agreement that summary judgment
should seldom be granted in discrimination cases, in this Circuit, the grant of
summary judgment has become routine, with judgment being granted almost
as a matter of course. See, e.g., Quick v. Wal-Mart Stores, Inc., 441 F.3d
606, 610 (8th Cir. 2006)(Lay, J., dissenting)(“Once again, our court is faced
with an employment discrimination case where there are facts in
dispute….this [grant of summary judgment] is a violation of the Plaintiff’s
rights….”).
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In fact, the district court judge who granted summary judgment in this
discrimination case has done so in approximately 87.5% of the cases before
her in which summary judgment motions were brought on employment
claims under Title VII, the Americans with Disabilities Act (“ADA”), the
Age Discrimination in Employment Act (“ADEA”) or the Minnesota Human
Rights Act (“MHRA”).2
This court has repeatedly cautioned that summary judgment should
not be granted in “close” cases. “[T]he need to resolve factual issues in
close cases is the very reason we have juries.” First National Bank of
Omaha v. Three Dimension Systems Products, Inc., 289 F.3d 542, 544 (8th
Cir. 2002); see also Keho v. Anheuser-Busch, Inc., 995 F.2d 117, 120 (8th
Cir. 1992)(reversing grant of summary judgment in “very close case”).
Yet, judges in the District of Minnesota have granted summary
judgment in cases they themselves characterize as “close.” See, e.g.,
Woodford v. Federal Express Corp., 2004 WL 234396 p. 7 (D. Minn. Jan.
21, 2004)(granting summary judgment on claim of sexual harassment, even
2 This number was derived as follows: Westlaw searches were conducted
using the search terms “JNE & ADA & co(D. Minn.)” and “ JNE & ADEA
& co(D.Minn.)” and “JNE & MHRA & co(D.Minn.)” and “ “JNE & “Title
VII” & co(D.Minn.)” These searches revealed 24 employment cases on
which District Court Judge Ericksen considered summary judgment motions
on claims under Title VII, the ADA, the ADEA and the MHRA. In all but 3
individual cases, Judge Ericksen granted summary judgment and dismissed
the case. ADD. 26-28.
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though the evidence presented a “somewhat close question”); Hervey v.
County of Koochiching, 2006 WL 2990515 p. 16 (D. Minn. Oct. 20, 2006)
(granting summary judgment in retaliation claim “although the question is
close”).
Although summary judgment is seldom to be granted in
discrimination cases, and although summary judgment may never be granted
when reasonable minds could view the evidence differently, this Court has
affirmed the grant of summary judgment in many cases in which members
of its own panel believe that a reasonable juror could find in the plaintiff’s
favor. See, e.g., Hervey v. County of Koochiching, 527 F.3d 711 (8th Cir.
2008)(Melloy, J., dissenting); Canady v. Wal-Mart Stores, Inc., 440 F.3d
1031 (8th Cir. 2006)(Lay, J., dissenting); Quick v. Wal-Mart Stores, Inc., 441
F.3d 606 (8th Cir. 2006)(Lay, J., dissenting); Melvin v. Car-Freshener Corp.,
453 F.3d 1000, 1003-04 (8th Cir. 2006)(Lay, J., dissenting); Arraleh v.
County of Ramsey, 461 F.3d 967 (8th Cir. 2006)(Heaney, J., dissenting) reh’g
and reh’g en banc denied (Murphy, J. and Bye, J. voting for en banc
review); Keil v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir.
1999)(Heaney, Bright, McMillian and Morris Sheppard Arnold, J.J.,
dissenting).
Judge Lay reacted to the trend toward routinely granting summary
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judgment motions in this way:
The majority opinion sets a new and dangerous precedent for
this circuit. It should be overruled. The majority overlooks that
summary judgment is a disfavored standard which “should
seldom be utilized” in employment discrimination cases. Pope
v. ESA Servs., Inc., 406 F.3d 1001, 1006 (8th Cir. 2005). As
long as a reasonable jury could find that Canady was the victim
of a racially hostile work environment and was terminated
under circumstances that create an inference of unlawful
discrimination, we are obligated to allow both his claims to be
submitted to a jury. . . .
Canady, 440 F.3d at 1035 (Lay, J., dissenting).
Judge Lay also wrote:
Too many courts in this circuit, both district and
appellate, are utilizing summary judgment in cases where issues
of fact remain. This is especially true in cases where witness
credibility will be determinative….Summary judgment should
be the exception, not the rule. It is appropriate “only…where it
is quite clear what the truth is,…for the purpose of the rule is
not to cut litigants off from their right of trial by jury if they
really have issues to try.” Poller v. Columbia Broad. Sys., Inc.,
368 U.S. 464, 467 (1962)(emphasis added)(citation and internal
quotations omitted)….
Melvin v. Car-Freshener Corp., 453 F.3d 1000, 1003-04 (8th Cir. 2006)(Lay,
J., dissenting).
As a result of the courts’ frequent dismissal of discrimination suits,
employers have become emboldened. This is such a case. Here, the
employer accepted federal funds which were to be used to hire female and
minority firefighters if possible. Rather than hiring Appellants and Olson,
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who were all qualified according to the City’s own hiring process, it hired all
white men, ignoring their lack of minimum qualifications, weighing the
subjective interview process so heavily as to dramatically alter applicant
ranking, and applying different “pass through” standards for white men in
the Chiefs’ interviews.
Without exception, on each element of Appellants’ claim, the District
Court ignored the summary judgment standard and weighed evidence,
drawing conclusions from the evidence (labeling them as such); stating the
Court was not “persuaded” by the evidence; evaluating the “context” of
statements and drawing inferences in favor of the City as a result; and
ignoring the Court’s own initial reaction to evidence of statements that a
hired candidate was a “big, strong guy” or that the City shouldn’t have
accepted the SAFER Grant if it required the hiring of minorities, which it
called “problematic” at oral argument (Hearing Transcript pp. 51-53) but
then recast in the order to be “devoid of reference to women” (ADD. 14) and
“evidence of concern that the Commission have the discretion to hire the
best-qualified firefighters.” ADD. 13.
This kind of disregard for the standard at summary judgment has
become so common that it deprives plaintiffs of their Constitutional right to
trial by jury.
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III. District Court Erred In Dismissing Discrimination Claims.
Title VII of the Civil Rights Act of 1964 and the Minnesota Human
Rights Act prohibit discrimination in employment based upon sex and race.
See 42 U.S.C. §2000e et seq.; Minn. Stat. §363A.01 et seq.
Claims of discrimination are proved either by direct or indirect
evidence. In Griffith v. City of Des Moines, the Court reiterated that the
“McDonnell-Douglas burden-shifting analysis is not the only way for a
plaintiff to prove unlawful discrimination.” Griffith v. City of Des Moines, 387
F.3d 733, 735-36 (8th Cir. 2004). The Court then explained that a plaintiff may
survive the defendant’s motion for summary judgment in one of two ways, the
first being proof of “direct evidence” of discrimination. Id. at 736.
Direct evidence in this context is not the converse of
circumstantial evidence, as many seem to assume. Rather, direct
evidence is evidence “showing a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to
support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated” the adverse employment action.
Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 98th Cir.
1997). Thus, “direct” refers to the causal strength of the proof,
not whether it is “circumstantial” evidence. A plaintiff with
strong (direct) evidence that illegal discrimination motivated the
employer’s adverse action does not need the three-part
McDonnell Douglas analysis to get to a jury, regardless of
whether his strong evidence is circumstantial.
Griffith, 387 F.3d at 736.
A direct evidence inquiry is not limited to those officially entrusted
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with decision-making responsibilities. If a reasonable factfinder can
conclude that a third party was closely involved in the decision-making
process, then the analysis can extend to those who unofficially influence the
decision-making process. See, Mohr v. Dusrol, Inc., 306 F.3d 636, 641-42
(8th Cir. 2002), overruled on other grounds in Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003). “Courts look beyond the moment a decision was made
in order to determine whether statements or comments made by other
managerial employees played a role in the ultimate decision making
process.” Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th Cir. 2002).
“While [manager’s] decision may have ultimately been free of any
discriminatory animus, we cannot sterilize a seemingly objective decision
when earlier discriminatory decisions lead to the adverse employment
action.” Gagnon, 284 F.3d at 848-849 (citation omitted). See also Jiles v.
Ingram, 944 F.2d 409, 413 (8th Cir. 1991)(City could be held liable for
discrimination because of discriminatory animus by lesser officials who
initiated discharge, as well as the hostile work environment toward blacks);
Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1057-58 (8th Cir.
1993)(looking beyond the moment the decision to fire plaintiff was made,
which was free from discrimination, because the plaintiff’s supervisor had
treated her differently than her male counterparts).
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While the Rochester City Council in this case ultimately made the
hiring decisions, there is no dispute that it did so based solely on the
recommendations of the Fire Commission and Chief Kapler. App. 174-182;
215-16. Thus, it is clear that any discriminatory animus by members of the
Fire Commission and Chief Kapler is attributable to the City.
Under the facts of the Griffith case, the Court concluded that the
plaintiff lacked direct evidence because the plaintiff could not offer proof that
the decision maker made any negative references about the plaintiff’s national
origin. Id. Presumably, then, if a plaintiff could offer evidence of
discriminatory references to the plaintiff’s race or sex, the Court would
consider that evidence “direct” evidence, obviating the need to proceed under
the McDonnell Douglas analysis.
When Council Member Carr asked Fire Commissioner Field whether he
was aware of the terms of the SAFER grant, Field said he was not, even
though he clearly was aware of the terms of the grant and that three of the
positions hired were funded by the grant. Docket 23 at Ex. 1, pp. 23-26, 62.
Field denied knowledge of the SAFTER grant as it applied to minority hires
and commented that, if that was the case, the City should not have taken the
grant. Docket 23 at Ex. 1, p. 26- 27.
The District Court weighed this evidence, and concluded that that it was
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not evidence of discrimination. In so doing, the District Court assumed
credibility and lack of discriminatory animus on the part of Commissioner
Field, despite the fact that he lied to Councilmember Carr about his knowledge
of the requirements of the SAFER Grant, and despite her own initial reaction
to the statement, which was to call it “problematic.” Hearing Transcript p. 53.
The Court supplied a non-discriminatory motive to Field, in the complete
absence of any supporting evidence, concluding that his statement exhibited
“concern that the Commissioners have the discretion to hire the best-qualified
firefighters.” ADD. 13.
The District Court went further and concluded that there was “no
evidence” that Field influenced the final vote to certify candidates. ADD. 14.
The District Court ignored, however, that Field was the only Fire
Commissioner who did not complete hiring forms for Appellants indicating
“Yes” in answer to the question “Recommended for hire.” App. 64, 73, 125.
The District Court went even a step further and accepted as true the
City’s explanation that the Recommendation for Hire sheets were not
recommendations for hire, but rather certifications that the applicant files were
complete. ADD. 15, FN 15. This testimony came from Human Resources
Manager Linda Gilsrud. Id. Gilsrud’s testimony is rebutted first by the plain
language the forms. Nowhere does the form ask if the applicant file is
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complete. App. 64, 73, 125. It merely asks whether the applicant is
recommended for hire. Id. A reasonable juror could conclude that the
language on the form means what it says, and the District Court was wrong to
accept the City’s explanation as true. Furthermore, even though he was absent
from the meeting on March 15, Commissioner Field did complete the forms
for all the hired candidates, except for Eric Thompson. App. 64, 73, 125, 229,
271, 325, 378, 405, 440, 463, 503, 555, 601, 649, 695. Field specifically
declined to complete the recommendation for hire for the three protected class
candidates and Thompson, despite there being no evidence that the files were
incomplete. A reasonable jury could conclude from these facts that
Commissioner Field intended not to recommend Appellants for hire. This is
evidence of discrimination.
Similarly, when Council Member Carr spoke with Fire Commissioner
Withers about the hiring process, Withers commented that he wanted to hire
Thompson because he was a big, strong guy. Docket 23 at Ex. 1, pp. 38-40,
101-103. This evidence indicates that Field and Withers acted with
discriminatory animus, and simply did not want to hire Appellants.
The District Court again, at oral argument, called this evidence
“problematic.” Hearing Transcript p. 53. Yet, in the Order, the Court re-cast
the comment in a light most favorable to the City. ADD. 14. The District
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Court wrote, “Wither’s observation that a candidate was a “big guy” and
assessment of the candidate’s potential as a firefighter in defense of the
decision to appoint the candidate is not evidence of discrimination toward
women.” Id. There is a complete lack of evidence in the record to support that
neutral construction of the statement. Whether a comment that is on its face
gender specific is evidence that the speaker meant what he said is a fact
question for the jury.
Furthermore, Withers also commented to Jodi Olson’s husband, Jerry
Olson that he wanted the biggest strongest guys to be firefighters. These
statements are reflected in notes generated by Jodi and Jerry Olson at the time
of the hiring decisions. App. 731-36. While the notes are not in admissible
form, evidence opposing a motion for summary judgment need not be in
admissible form, and non-moving parties are not required to depose their own
witnesses in order to oppose a motion for summary judgment. See, Celotex,
477 U.S. at 324.
Even without direct evidence, Appellants can produce evidence from
which a jury could infer that the City’s failure to hire them was motivated by
racial animus by making out a prima facie case under the McDonnell
Douglas analysis. Under that standard, plaintiffs may survive an employer's
motion for summary judgment by "creating the requisite inference of
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unlawful discrimination" through the familiar three-step burden-shifting
analysis. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Chambers v. Metro. Prop. and Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir.
2003).
A prima facie case requires proof of four elements: (1) plaintiffs are
members of a protected class; (2) plaintiffs are qualified for the positions for
which they were hired; (3) plaintiffs suffered an adverse employment action
under circumstances that would permit the court to infer that unlawful
discrimination was involved. See, e.g., Sallis v. University of Minn. 408 F.3d
470 (8th Cir. 2005), Moss, 981 F. Supp. at 1246, citing Thomas v. Runyon,
108 F.3d 957, 959 (8th Cir. 1997)(additional citation omitted).
The City has never disputed that Appellants can meet the elements of
a prima facie case. Inexplicably, the District Court contended that the City
had challenged Appellant’s ability to meet their prima facie case, which it
had not, but nonetheless assumed that Appellants could do so. ADD. 15..
Thus, the burden rested on the City to articulate a non-discriminatory reason
for not hiring plaintiffs. Once it did so, Appellants were required to submit
evidence upon which a reasonable juror could find that the City’s reasons
were pretextual. This they did.
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In considering the element of pretext, the District Court held
Appellants to an incorrect legal standard. The District Court required
Appellants to both “discredit the City’s reason for not hiring them and show
that circumstances permit drawing the reasonable inference that the real
reasons they were not hired were that Mundell is female and Torgerson’s
national origin is Native American.” ADD. 15-16. The Supreme Court has
rejected this “pretext plus” requirement. See, Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 147 (2000)(the trier of fact can reasonably
infer from the falsity of the explanation that the employer is dissembling to
cover up a discriminatory purpose). “Thus, a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.” Id. 530 U.S. at 148.
With respect to the MHRA, the Minnesota Court of Appeals has said:
Because subjective justifications are based primarily on the
decision maker’s mental impressions, attitudes, and opinions,
and employer’s subjective hiring justification makes it
especially difficult for a plaintiff to produce evidence to create a
material fact issue regarding pretext even if the hiring decision
was discriminatory. Moreover, subjective justifications have
the “potential to favor applicants who are most like those doing
the selecting,” and the propensity to conceal discrimination.
Kaster v. Indep. Sch. Dist. No. 625, 284 N.W.2d 362, 366
(1979). Because the plaintiff’s burden to show pretext is more
difficult when the employer’s justification for its hiring
decision is subjective, we consider an employer’s lack of
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objective hiring criteria when determining whether there is a
material fact issue in regard to pretext. Scientific Computers,
Inc., 393 N.W.2d at 204.
Meads v. Best Oil Company, 725 N.W.2d 538, 543 (Minn. Ct. App. 2006).
Federal courts have similarly held that a plaintiff’s burden is lighter at
summary judgment when the employer’s hiring or promotions process is
subjective. See, e.g., Lyoch v. Anheuser-Busch Companies, Inc., 139 F.3d
612, 615 (8th Cir. 1998); McCullough v. Read Foods, Inc., 140 F.3d 1123,
1129(8th Cir. 1998)(reversing grant of summary judgment).
Subjective processes controlled the instant hiring decision almost
entirely. The interview portion of the pre-list process was weighted as forty
percent of the applicant’s score. Then, after the ranking list was created, the
selection criteria was entirely subjective—a “pass/fail” interview with Chief
Kaplan and Deputy Chief Slavin.
As its alleged non-discriminatory reason for not hiring Appellants, the
City contends that Chief Kapler recommended other candidates because they
were more qualified, by virtue of placing higher on the City’s ranked list.
The City’s arguments are pretext for discrimination. Chief Kapler stated
that he was looking for candidates who would be a good “fit” in the
department. Docket 23 at Ex. 4, pp. 27-29. This is precisely the subjective
justification that has “potential to favor applicants who are most like those
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doing the selecting,” and the propensity to conceal discrimination that is the
reason summary judgment should “seldom” be granted in discrimination
cases.
The District Court acknowledged that most of the hiring process was
subjective, but concluded that summary judgment was nevertheless
appropriate because the panel interview process was subject to controls,
eventually stating, “the Court concludes that the city took effective steps to
minimize the panel interview’s susceptibility to abuse.” ADD. 16. That
conclusion was not the District Court’s to draw. The question of whether
the subjective interview process controls alleviated discrimination was for
the jury to determine, as it requires qualitative weighing of evidence.
In viewing the admittedly wholly subjective Chief’s interviews, the
District Court again drew inferences in favor of the City. Astonishingly, the
District Court concluded as a matter of law that Appellants were not
similarly situated to the hired candidates. ADD. 17-18. The Court wrote,
“In the absence of evidence indicating that Kapler used illegitimate criteria
during his interview or that Plaintiffs were more qualified than the hired
candidates, the use of subjective criteria during Kapler’s interview does not
give rise to an inference of discrimination.” ADD. 19. This conclusion
completely ignores the objective evidence presented by Appellants that
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Torgerson and Mundell were more qualified than the hired candidates by
virtue of their greater education, experience and certifications.
The District Court again drew inferences and made credibility
determinations in rejecting Councilmember Carr’s testimony that Chief
Kapler called Torgerson and Mundell “unfit.” The Court cites Kapler’s
vague testimony:
Well, I guess it depends on what the word “fit” means. To us it
has a specific connotation. A fitness for duty type of
evaluation, mental, emotional, physical, is all part of a person’s
fitness for duty. So that’s how I use the word fit. They are –
they are on our list as qualified candidates, so yes, they’re
qualified to be firefighters.
ADD. 20. The District Court then concludes, “Kapler’s distinction between
“qualified” and “fit” does not give rise to an inference of discrimination.”
ADD. 21. In order to reach this conclusion, the District Court had to first
credit and then re-characterize Kapler’s testimony. Kapler admitted that
Appellants were qualified to be firefighters, and suggested that the term “fit”
related to mental and physical fitness for duty. Use of the term “unfit” in
reference to Appellants would then suggest that they were not mentally or
physically fit for duty, even though they had passed the required physical
agility test and the City’s background check. Councilmember Carr
specifically testified, even when challenged by the City’s attorney, that
Kapler called Appellants “unfit.” The District Court simply refused to
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credit his testimony. These credibility determinations are not within the
purview of a district court on summary judgment, and are supposed to be
reserved for the jury.
In determining whether summary judgment is appropriate, the court
must consider both the strength of the plaintiff's prima facie case and the
probative value of the proof that the employer's explanation is false. See,
e.g., Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003) (quoting
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148-49 (2000)).
Here, Appellants have presented a very strong prima facie case. They
have shown not just that they were qualified for jobs that were filled with
non-minority hired applicants, which would be sufficient to make out a
prima facie case, but that they were objectively better qualified than the
hired applicants by virtue of their education, experience and certifications.
The strength of this evidence alone is sufficient for a reasonable jury to find
in favor of Appellants and required the denial of summary judgment.
In addition to proving pretext through the strength of their prima facie
case, there are at least two additional routes by which a plaintiff may
demonstrate a material question of fact at this final stage of the analysis.
First, a plaintiff may succeed "indirectly by showing that the employer's
proffered explanation is unworthy of credence because it has no basis in
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fact.” See, Burdine, 450 U.S. at 256; Smith v. Allen Health Sys., Inc.,302
F.3d 827, 834 (8th Cir. 2002).
Second, a plaintiff may succeed directly by persuading the court that a
prohibited reason more likely motivated the employer. See Burdine, 450
U.S. at 256. Both of these routes, in effect, amount to a showing that the
prohibited reason, rather than the proffered reason, actually motivated the
employer's action. See, Wallace v. DTG Operations, Inc., 442 F.3d 1112,
1120 (8th Cir. 2006).
Here, it is clear that many of the hired white male candidates did not
possess their NREMT certification, and were not eligible for certification
because they had not completed the required education and/or had not
passed the required test. App. 217-223. Because these candidates were not
eligible for employment in the first place, the City’s proferred reason has no
basis in fact: in fact, several of the hired candidates should not have been on
the list at all, much less on the list at a higher ranking than Appellants.
Chief Kapler himself realized that these candidates were not eligible,
and initially did not recommend them. App. 176. Despite having no
objective basis not to recommend Appellants, however, after initially
rejecting several of the white male applicants as ineligible, he sought
additional white male candidates in order to avoid recommending
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Appellants. App. 212-14. He requested sufficient white male candidates to
fill the initial seven 2006 hires, as well as enough to fill the five positions
hired in 2007. App. 173-78; 215-16. He then reversed his initial rejection of
the ineligible candidates and hired them all.
Furthermore, City Human Resources Director Linda Gilsrud and
Chief Kapler both stated that the ranking is not to be taken as a necessary
hiring order, specifically because the disparities in actual scores are slight.
App. 174-75; 729-30. Add these admissions to the fact that all three
protected class candidates were above, equal to or within three tenths of a
point of the hired white male candidates prior to the subjective interview
process, and it is clear that the hired candidates were not more qualified than
Appellants. App. 194-210.
Still further, the wild fluctuation in the hired candidates’ ranking after
the oral interview process is at best suspect, and at worst clear evidence of
discrimination. Council Member Carr concluded, after his review of the raw
scores, that the City weighted the subjective interview process heavily
enough that they could pick and choose their candidates. Docket 23 at Ex.
1, pp. 40-58. He testified that, when he questioned the criteria for the
Chief’s interviews he was told that the Chief was looking for candidates who
“fit in” with the department. Docket 23 at Ex. 1, pp. 73-78. He called this
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subjective standard the “worst kind of racism.” Docket 23 at Ex. 1, pp. 73-
74.
In addition, Appellants possessed the same qualities that Deputy Chief
Slavin testified made white male candidates “standouts.” Docket 23 at Ex. 8,
pp. 43-65. Yet, Slavin did not consider Plaintiffs standouts. Docket 23 at
Ex. 8, pp. 32-41. Chief Kapler plainly testified that he applied a different
standard to Appellants in their interviews than he did for white candidates,
for whom the interview was essentially a “pass-through.” Docket 23 at Ex. 4,
pp. 48-49; 97-102; 180-85. After he did so, he told the City Council that
Appellants were “unfit,” even though he knew this not to be true. Docket 23
at Ex. 4, p. 180; Ex. 1, pp. 36-37.
Finally, after the 2006 hiring process, the City hired the additional
five white males without ever interviewing Appellants. App. 174-178; App.
189-92; 215-16; Docket 23 at Ex. 4, p. 92. Included in that hiring was
Jeremy Zabel, who the Chief had not recommended in the 2006 hiring
because he was immature. App. 176.
All of this evidence supports a conclusion that the City’s articulated
reason for not hiring Appellants is not worthy of credence, and that race and
gender more likely motivated the hiring decisions. After conducting his own
investigation of the facts, Councilmember Carr himself concluded that the
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City had discriminated against Plaintiffs. Docket 23 at Ex. 1, pp. 36-37; 40-
58; 85-86.
At oral argument, the District Court declared that she was not required
to follow the conclusions of Councilmember Carr. Hearing Transcript p.
36. This statement demonstrates the District Court’s failure to follow the
summary judgment standard. The District Court’s task at summary
judgment was not to form her own conclusions based upon the evidence.
Rather, it was to evaluate whether there was evidence in the record from
which a “reasonable” jury could conclude that discrimination had occurred.
The District Court had before her the deposition testimony of
Councilmember Carr, who testified he reviewed all of the evidence himself
immediately after the hiring process and concluded that Appellants had been
discriminated against. Docket 23 at Ex. 1, pp. 36-40, 86. There is certainly
no suggestion in the record that Councilmember Carr is not a reasonable
man. The fact that the District Court viewed the evidence differently than
did Councilmember Carr only demonstrates the need for a jury to decide the
case.
IV. Section 1981
The Court dismissed Torgerson’s claim for discrimination under
Section 1981 on the ground that “Section 1981 does not apply to claims of
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Case: 09-1131 Page: 51 Date Filed: 03/10/2009 Entry ID: 3525991
discrimination based upon national origin.” Order at 10 citing Zar v. S.D.
Bd. Of Examiners of Psychologists, 976 F.2d 459, 467 (8th Cir. 1992). Zar
does not so hold. The entire discussion of Section 1981 in the Zar cases
appears below:
Section 1981 prohibits purposeful racial discrimination, which
includes discrimination solely because of ancestry or ethnic
characteristics. St. Francis College v. Al-Khazraji, 481 U.S.
604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582 (1987). If an
individual is “subjected to intentional discrimination based on
the fact that he was born an Arab, rather than the place or nation
of his origin,” then he has a case under § 1981. Id. While Dr.
Zar correctly recites the law, he bases his claim only on the fact
that he is Iranian. At oral argument before this court, Dr. Zar's
counsel repeated this position, and when asked whether Dr. Zar
was an Arab, he responded “I can't tell you, your Honor.” This
claim of discrimination based upon national origin is
insufficient to state a § 1981 claim. We affirm the district
court's grant of summary judgment on the § 1981 claims.
Zar, 976 F.2d at 467. This Court clearly held in Zar that “this” case claim of
discrimination based upon national origin was insufficient to state a claim
because Zar did not base his claim on the fact that he was “born an Arab,”
rather than on the fact that he was born in Iran.
In this case, Torgerson does not base his claim on the fact that he is a
member of a particular Native American nation, but rather that he was born
Native American. The United States Supreme Court has long held that
Section 1981 prohibits discrimination because of ancestry or ethnic
characteristics. See, St. Francis College v. Al-Khazraji, 481 U.S. 604, 613
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Case: 09-1131 Page: 52 Date Filed: 03/10/2009 Entry ID: 3525991
(1987)(if an individual is subject to intentional discrimination based on the
fact that he was born an Arab, rather than the place or nation of his origin,
then he has a case under Section 1981).
In his concurring opinion in St. Francis College, Justice Brennan
pointed out that, even under Title VII, the definitions of race and national
origin overlap. See, St. Francis College, 481 U.S. at 614 (Brennan, J.,
concurring). This is particularly true in the case of Native Americans, who
were all born in “America,” but are born to recognized individual nations
and yet share racial or ethnic characteristics, such as the color of their skin,
which for centuries was referred to as “red.”
“Native Americans are a well-recognized protected class, and their
claims under the various anti-discrimination statutes have been treated as
both race and national origin claims.” Leonard v. Katsinas, 2007 WL
1106136 (C.D. Ill. 2007) citing Dawavendewa v. Salt River Project Agr.
Imp. And Power Dist., 154 F.3d 1117, 1119 n.4 (9th Cir. 1998). Torgerson
alleges that he was discriminated against because he is Native American.
Therefore, he is protected under Section 1981.
Torgerson’s claims under Section 1981 are analyzed under the same
standard as his claims under Title VII. See Richmond v. Board of Regents of
Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992); Herrero v. St. Louis
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University Hospital, 109 F.3d 481, 484 (8th Cir. 1997); Blanks v. Waste
Management of Arkansas, Inc., 31 F. Supp. 673, 676 (E.D. Ark. 1998). For
the reasons articulated above, a reasonable jury could conclude, as City
Councilmember Pat Carr did, that he was discriminated against.
CONCLUSION
The Order of the District Court is replete with examples of the Court
ignoring the standard for summary judgment motions. Repeatedly, the
District Court weighed evidence, stating that the Court was “not persuaded”
or that the evidence did not “show” discrimination or that the Court
“concluded” that the evidence was insufficient. Nowhere in the District
Court’s Order granting summary judgment did the District Court draw
inferences in favor of plaintiffs, nor consider whether a reasonable juror
could view the evidence differently. This disregard for the summary
judgment standard has become the norm, and this kind of “trial on the
paper” violates plaintiffs’ Constitutional right to trial by jury. The facts,
when all inferences are drawn in favor of Torgerson and Mundell, clearly
present evidence from which a reasonable juror could conclude that
discrimination had occurred, which City Councilmember Carr himself did.
For these reasons, Torgerson and Mundell ask this Court to reverse the
District Court’s grant of summary judgment and remand the case for trial.
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Case: 09-1131 Page: 54 Date Filed: 03/10/2009 Entry ID: 3525991
Dated: March 9, 2009 _____________________________
Leslie L. Lienemann (#230194)
Celeste E. Culberth (# 228187)
CULBERTH & LIENEMANN, LLP
1050 UBS Plaza
444 Cedar Street
St. Paul, MN 55101
(651) 290-9300
ATTORNEYS FOR APPELLANTS

12:29 PM  
Anonymous Anonymous said...

This is probaly OK with Eric and Chuck also. Anything to fuck the little guy into the gorund so the Govenrment looks good. Right Eric? Save face at any cost and keep those voters coming our way at election time.

3:09 PM  
Anonymous Anonymous said...

Sounds like this judge was acting in the place of a jury. I don't think she is supposed to do that.

6:32 PM  
Anonymous Anonymous said...

I am completely stunned by this. How could this Judge think that this should not go to a jury for consideration?

10:26 PM  
Anonymous Anonymous said...

I have always said on this blog that there are probably racists within the city. Actually, I know that there is a undercurrent of bigotry among more than one employee in several departments including some of our favorites like police, fire and public works.

Each have been under the gun lately for discriminatory actions. I even know and trust the people that brought those suits were relaying the truth.

The difference is, I know its not coming from leadership or is an accepted practice. There is no RICO.

As much as Bob likes to try to say it, I'm not famous or have a famous face. I get treated by some of these individuals like any other black person is. I imagine the difference is, I push back.

The RICO suits explicitly say that there is an accepted pattern to remove poor minorities from the city via targeting landlords that rent to them.

That is my major parting with this blog. There is no RICO. That conspiracy requires too many participants who have nothing to gain but, are sworn to secret over the security of their job.

I know Andy Dawkins. He is no racist. He has over 20 years of public service that says different. I kind of knew Randy Kelly. The same guy who flew to Asia and welcomed immigrants into this town. As messed up as his politics was, Kelly was not trying to get rid of minorities, he was however aiming to put some of these slumlords out of business and compete with them by building better low/no-income housing.

This RICO crosses jurisdictional boundaries and suggests cooperations that are just silly for the sole purpose of ex-communicating poor minorities. Even though throughout these ranks there are plenty of minorities who are not milquetoast to the point of just being silent. Councilmembers, judges, cops, fire personnel? No way.

That's what you have to believe if you believe the RICO suits.

Are their racist individuals that work for the city? Hell yes.

Is there a contrived effort city wide to act on those racist beliefs? Hell no.

Ed of my story. Same damn thing I said in December 2006 on this blog.



Eric

10:32 AM  
Anonymous Anonymous said...

I hear this is the same judge that presided over the rico cases. Seems that she sides with city defendants no matter what they do wrong.

7:38 AM  
Anonymous Anonymous said...

It's a crooked Judge and a dirty Judge from what it appears here in writing.

2:58 AM  

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