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Torgerson v. City of Rochester, Minn., No. 09-1131 (8th Cir. June 1, 2011) (en banc)

A 6-5 en banc decision from the Eighth Circuit affirms summary judgment in a sex and national-origin discrimination case involving the hiring of firefighters, vacating a prior decision that reversed summary judgment. The court disaffirms language located in 62 published, panel decisions since 1987 (collected in an appendix to the opinion) stating that summary judgment ought to be applied sparingly in employment discrimination cases.

Torgerson v. City of Rochester, Minn., No. 09-1131 (8th Cir. June 1, 2011) (en banc): Whatever reticence courts once had about dismissing employment discrimination cases on dispositive motions, short of trial, vanished long ago - district courts and courts of appeal today routinely grant and affirm such decisions that deprive employees of a trial with live testimony and (most often) a jury.

A vestige of the old virtue remained in published opinions that repeated the standard that Federal Rule 56 summary judgment should "seldom" be granted where questions of intent were concerned, and not granted in "very close" cases. But in the Eighth Circuit, that nostrum was swept aside today. In a part of the opinion joined by all eleven active judges, the Court holds that there is no special Rule 56 consideration or exception for employment cases.

The original panel decision (2-1) believed that there was something hinky about the process used by the city fire department to hire new officers. Apart from the usual bank of tests, the panel-interview process counted for up to 40% on rankings of firefighter applicants, and employees who had otherwise passed examinations could wind up downgraded on grounds that were, uh, difficult to evaluate.  A commissioner in this case found one Native-American applicant "awkward" and "unsophisticated," and another commissioner favored a male candidate over a woman because the former was "a big guy." (The "big guy," it turned out, had served time for vehicular homicide eight years earlier, a fact that only came to light after he was offered the job - thought the offer was not withdrawn.)

The original panel majority held that the plaintiffs presented genuine issues of material fact about the department's motives for their hiring of white men, based on (1) the subjective nature of the hiring process, including the panel and fire chief interviews; (2) the different standards commissioner used in the fire chief interviews; (3) commissioner's reference to plaintiffs as "unfit"; (4) the hiring of some white candidates with similar or lower qualifications than the appellants; and (5) the hiring of an addition al five white males after this challenged 2006 hiring process.

The en banc court tosses the panel decision, with Judge Benton (the original panel dissenter) writing for the six-judge majority - though we will see that one of the six (Judge Colloton) concurred only with reservations.

All of the active judges agreed that it was past-due time to address the lingering language in the circuit's decisions implying a higher standard for granting summary judgment in discrimination cases:

"The panel statements asserting a different standard of review for summary judgment in employment discrimination cases are contrary to Supreme Court precedent. The Court has reiterated that district courts should not 'treat discrimination differently from other ultimate questions of fact.' . . . Because summary judgment is not disfavored and is designed for 'every action,' panel statements to the contrary are unauthorized and should not be followed. There is no 'discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." [Citations omitted.]

Turing to the facts of the case, the plaintiffs relied on statements made by some participants in the decisions as "direct evidence" of discrimination. But the majority found the statements, at best, equivocal.

One commissioner supposedly said that the department would not have accepted federal grant money if they had known that it obliged them specifically to hire women and minorities. The majority doubts that the commissioner who made the remark was a "decision maker" whose statement might be deemed an admission, but in any case holds that his statement was - in point of fact - an accurate statement of Title VII (i.e., that the department cannot be required to hire protected-group employees on a quota basis).

The "big guy" statement is also kicked away by the majority because it "came in the context of a conversation about a specific candidate just before an emergency Council meeting that focused on reconsidering his appointment. The 'big guy' statement does not relate to [plaintiff] Mundell, or to the abilities of female applicants, and thus is not direct evidence of discrimination."

Finally, the majority holds that a remark by the fire chief that he found the plaintiffs "unfit" for duty was merely a comment on their fitness relative to the pool as a whole, rather than evidence that he took them as "unqualified" for duty.

The majority also rejects the plaintiffs' argument that the looseness and subjectivity of the interview process might simply serve to mask discriminatory intent. At the outset, the majority notes that although the plaintiffs made the interview phase of the hiring process, having passed the tests, they still ranked at the near bottom of the eligible applicants (respectively, nos. 45 and 46 out of 48). The majority held there was no evidence that the interview process was biased. And given that the plaintiffs remained at the bottom of the eligibility list both before and after the interviews, there was no evidence that the interviews even made a difference in the hiring outcomes.

"It is undisputed that at all times, they retrained their ranks on the eligibility list, and by their own admissions of the undisputed ranks, those at the top were more qualified than those at the bottom. While instances of disparate treatment can support a claim of pretext, [plaintiffs] Torgerson and Mundell have the burden to prove that they and the top applicants were 'similarly situated in all relevant respects'-a 'rigorous' standard at the pretext stage."

Judge Colloton grants the sixth, majority-making vote to affirm summary judgment, but in his concurring opinion carefully notes that he only provisionally accepts the majority's framework that, under Title VII, an employee must furnish "direct evidence" of discrimination to shift the burden of proof to the employer, citing Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). Judge Colloton notes that he doubts that this standard was correct in light of Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), but that the plaintiffs had not challenged this framework (and indeed relied on Griffith).

The dissent, authored by Judge Smith, would have held that the commissioners' comments cited above - about the consequences of accepting the federal grant, the "fitness" remark, and the "big guy" remark - were ambiguous and that a jury ought to have been allowed to sort out thier true meaning. The dissent closes by noting that "[s]ummary judgment serves an important efficiency function by resolving cases lacking material factual dispute by more efficient means than a trial. However, where material factual disputes exist, especially those which turn on evaluation of witness credibility, it is no injustice to permit the matter to be tried."

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