The Eighth Circuit reverses summary judgment in this ADEA and Minnesota Human Rights Act case, holding that a jury could find that the city’s failure to promote the city’s lieutenant to Chief of Police was motivated by age. Importantly, it notes that an employer that assumes that people who are retirement-eligible are “uncommitted” to a promotion are skating on thin-ice.
Hilde v. City of Eveleth, No. 14-1016 (8th Cir. Feb. 5, 2015): When the city’s Chief of Police retired, Lieutenant Hilde (age 51) had every reason to believe he’d be promoted up to the top rank. He was second-in-command, he had the outgoing Chief’s support, he had spotless credentials, and he had history behind him – the commission in charge of making the hiring decision had promoted from within for 22 years. He also had the highest service score of the candidates – 73, versus the next highest candidate who had 43.
But when the three-person commission completed its work, it became apparent that things went awry for Hilde. The commissioners oddly gave one candidate, Koivunen (age 43), perfect 100 point scores for his interview, while also giving Hilde exactly-identical 69 point scores. “Two of the commissioners denied (or claimed not to remember) changing Hilde’s scores, although markings on the scoring sheets were altered.”
An important admission also emerged in the process. One commissioner stated Hilde’s age made him retirement-eligible: “[We were all aware that he was eligible to retire at any point in time that he chose. He was eligible right then; he could have pulled the trigger at any time.” By contrast, Koivunen’s age ensured he would not retire for another seven years. Koivunen was hired.
Despite what seemed like fairly compelling evidence, the District Court granted summary judgment on Hilde’s ADEA and MHRA case.
The Eighth Circuit, in reversing summary judgment, issues three significant statements of ADEA law.
First, adverse actions based on proximity to retirement can constitute age discrimination, if they are grounded in age stereotyping. The city defended its actions as based on a non-age concern: while the “commissioners considered Hilde’s retirement in reaching a decision,” nevertheless “retirement eligibility is evidence of an employee’s lack of commitment to a job, a legitimate concern.”
The Eighth Circuit fillets this reasoning:
“The City provides no evidence that the commissioners doubted Hilde’s
commitment to the job for any reason but for his age-based retirement eligibility. They admit he had a great reputation in the force and they held his continued service in the highest regard … The commissioners apparently never asked about his commitment to the job or whether he was considering retirement. The City has not met its burden of articulating a nondiscriminatory justification for its reliance on Hilde’s retirement eligibility.”
In short, this one of the rare cases in which the employer is held not to have met its burden to produce a legitimate, non-discriminatory reason, because the reason itself is tainted by the protected trait (here, age).
Second, the panel holds that the city’s contention that Koivunen was simply “the most qualified candidate for the position” presented a genuine dispute of material fact. While it is not a violation of anti-discrimination law (for the most part) for employers to rely on purely-subjective judgments – Koivunen evidently won the promotion on the strength of his interview scores – here the candidate’s rankings were tied, and the city offered no explanation and acted furtively.
“When asked why ‘superior candidate’ Koivunen’s scores were not higher than Hilde’s, Commissioner England stated, ‘I don’t know. I can’t answer that.’ Before the interviews, Hilde was the most qualified candidate with more than double Koivunen’s score. The commissioners altered Hilde’s interview scores during deliberations, ‘leveling’ the two candidates.”
Finally, the panel holds that the successful candidate was in the protected age group and just eight years younger did not “doom” Hilde’s case: “Here, the
commissioners thought Hilde was retirement-eligible because of his age. They also
thought Koivunen would stay in the position for at least seven years before he could retire. Therefore, the age difference was substantial in this case.”
AARP submitted an amicus brief in this case, as well.