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Torgerson v. City of Rochester: US District Court : EMPLOYMENT - summary judgment for defendant regarding gender, national origin discrimination claims in firefighter hiring

David Torgerson and
Jami Mundell,
v. Civil No. 07-1968 (JNE/JJG)
City of Rochester,
Leslie L. Lienemann, Esq., Culberth & Lienemann, LLP, appeared for Plaintiffs David
Torgerson and Jami Mundell.
Patricia Y. Beety, Esq., League of Minnesota Cities, appeared for Defendant City of Rochester.
David Torgerson and Jami Mundell bring this action against the City of Rochester (City)
claiming the Citys decision not to hire them as firefighters violated state and federal law.
Torgerson, a Native American male, alleges discrimination on the basis of national origin.
Mundell, a white female, alleges that the City did not hire her because of her sex. Plaintiffs
make claims under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C 2000e to
2000e-17 (2000), and the Minnesota Human Rights Act (MHRA), Minn. Stat. 363A.01-.41
(2006). In addition, Torgerson brings a claim under 42 U.S.C. 1981 (2000). The case is before
the Court on the Citys motion for summary judgment. For the reasons set forth below, the
Court grants the motion.
A. Citys Process for Hiring Firefighters
In accordance with Minn. Stat. 420.06 (2006), the Citys Fire Civil Service
Commission (Commission) has control and supervision over the employment of all officers of
the Citys Fire Department. There are three Commissioners, and any Commission action
requires an affirmative vote of at least two Commissioners.
The process for hiring firefighters is set forth in the Commissions Fire Civil Service
Rules and Regulations (Regulations). According to the Regulations, candidates for firefighter
positions must pass written and physical fitness tests to be eligible for appointment. The
Regulations require notice of an upcoming examination to be published in the official
newspaper1 and posted in city hall and at each fire station at least thirty days before the
examination. The Citys Human Resources (HR) Department reviews written applications for
posted vacancies to determine if the candidates meet the minimum qualifications for the position.
All candidates meeting the minimum qualifications advance to the examination process.
Phase I of the examination process is a written test, which counts for thirty percent of a
candidates final score. The candidates who receive the fifty highest scores on the written test
advance to Phase II, the physical agility test. The physical agility test accounts for thirty percent
of a candidates final score.2 Of those fifty candidates, those who pass the physical agility test
advance to Phase III, which is an interview with a three-person panel. One panel interviewer
represents the Commission, one represents the Citys HR Department, and one represents the
Fire Department. All three panel interviewers score a candidates responses to the interview
questions on a scale of 1-10.3 The panel interview accounts for forty percent of a candidates
1 The record does not indicate which newspaper is the official newspaper.
2 Applicants are awarded points for Phase II based on the time it takes them to complete
the agility test. An applicant who takes more than 6 minutes and 30 seconds to complete the
agility test fails the test and cannot continue in the examination process.
3 The City converts the scores awarded during the panel interview to raw scores using a
process not described in the record. Plaintiffs do not challenge the conversion process here.
final score. After completion of the panel interview, the candidates raw scores for each phase
are converted to eligibility points by multiplying the raw score for each phase by the weight
assigned to the phase. A candidates final score is the total of his or her eligibility points,
including any veterans points awarded in accordance with Minn. Stat. 197.455 (2006).4 The
candidates are placed on an eligibility list in rank order based on their final score. The
Commission certifies the eligibility list, which stands for two years. All candidates on the
eligibility list are qualified for the position of firefighter.
According to the Regulations, when a vacancy is anticipated or occurs, the Fire Chief
shall make a written request to the Commission to certify to the City Council the names of the
persons eligible for appointment. Minnesota Statutes 420.07(7) (2006) requires the
Commission to certify the three names standing highest on the appropriate list to fill any
vacancy (rule of three). Minnesota Statutes 420.07 and the Regulations permit, but do not
require, the certification of up to two eligible candidates from each protected group for which a
disparity exists between the composition of the Fire Department and the Citys approved
affirmative action goals (expanded certification). The expanded certification is in addition to the
rule of three certification and is made in rank order.5 Each candidate eligible for certification for
appointment, including any protected group candidates, must pass a background check and an
interview with the Fire Chief. Candidates must also pass medical and psychological
4 Non-disabled veterans receive a credit of five eligibility points and disabled veterans
receive a credit of ten eligibility points.
5 The expanded certification may not include a member of a protected group if a member
of that group is one of the three candidates certified under the rule of three. Minn. Stat. 420.07.
According to the Regulations, if a candidate fails the interview with the Fire Chief,
background check, medical examination, or psychological examination, the Commission
considers the next qualified candidate on the eligibility list. The City Council makes the final
hiring decision, but according to City Councilmember Patrick Carr, the City Council abides by
the recommendations made by the Commission. In the past, the City has used an expanded
certification to hire women and non-white firefighters who were not ranked at the top of the
eligibility list.
B. Challenged Hiring
In fall 2005, the City began a hiring process that resulted in the certification of forty-eight
candidates on the eligibility list. The eligibility list included three protected group candidates:
Mundell, a white female; Torgerson, a Native American male; and a second white female.
At the end of the written and agility phases of the examination process, Torgerson was
ranked 41st and Mundell was ranked 46th. Plaintiffs do not challenge these phases of the
examination process. Both candidates advanced to the panel interview phase. According to
Deputy Chief Dan Slavin6, who represented the Fire Department at half of the interviews, an
outside company gave the panel interviewers a set of interview questions and instructed them on
how to ask the questions and what responses were considered good responses. Fire Chief David
Kapler testified that panel interviewers were given scoring criteria establishing what indicators
showed that a candidate did or did not have desired qualities, but that there was a degree of
subjectivity to the panel interview.
6 The Court refers to City employees according to their titles at the time of the challenged
Plaintiffs testified that they received a list of possible interview questions about ten to
fifteen minutes before their panel interviews and that the panel interviewers took turns asking the
interview questions. Mundells score sheet indicates that Battalion Chief Charles Hermann, HR
Risk Management Analyst Joan Till-Born, and Commissioner Joe Powers conducted Mundells
interview. According to Torgersons score sheet, Till-Born, Hermann, and Commissioner John
Withers conducted Torgersons panel interview. Mundell testified that the questions asked of
her were the type of questions she anticipated based on the list of possible questions and that she
was not challenging the panel interview as part of this lawsuit. Torgerson testified that many of
the questions were word for word from the list of possible questions and that none of the
questions was inappropriate. Mundell and Torgerson scored 37th and 41st, respectively, on the
panel interview phase.
The Commission certified the eligibility list of forty-eight candidates at a meeting on
November 22, 2005.7 All three CommissionersWithers, Powers, and Roger Fieldwere
present. Mundell was ranked 40th on the eligibility list and Torgerson was ranked 45th. The
other female candidate was ranked 37th. On December 15, 2005, Kapler sent a memorandum to
the Commission asking it to forward a list of candidates from the eligibility list to fill three
vacant firefighter positions and three new firefighter positions, which were authorized by a
federal Staffing for Adequate Fire and Emergency Response (SAFER) grant. The SAFER grant
required the City to seek, recruit, and appoint members of racial and ethnic minority groups and
women to the extent possible. On January 9, 2006, Kapler asked the Commission to hire a
seventh firefighter as a replacement for a terminated firefighter.
7 The record does not indicate what happened to two of the original fifty candidates who
passed the written exam.
As illustrated in the following example, operation of the rule of three requires the
Commission to certify nine candidates for seven open positions.8 The Commission must certify
the first-, second-, and third-ranked candidates for the first position. Then, assuming the City
appoints the highest-ranked candidate for each position, the Commission must certify the
second-, third-, and fourth-ranked for the second position, the third-, fourth-, and fifth-ranked
candidates for the third position, and so on, until certifying the seventh-, eighth-, and ninthranked
candidates for the seventh position. The Commission may also certify protected group
candidates in addition to the rule of three candidates pursuant to the expanded certification
According to the meeting minutes, when the Commission met on January 18, 2006, it
discussed the purpose of the SAFER grant and whether the Commission should expand the
certification to include protected group candidates. HR Director Linda Gilsrud noted the
minimal differences in the total points between candidates on the eligibility list. Powers
opined that while all candidates on the eligibility list are qualified, the rank order should be
carefully considered. Withers questioned whether a lower-ranked candidate could perform the
job requirements and Deputy City Attorney David Goslee clarified that all of the candidates met
the examination requirements. Withers then moved to certify to the City Council the rule of
three candidates in rank order for six appointments and the rule of three candidates plus an
8 The example assumes that none of the nine candidates is eliminated by the interview with
the Fire Chief, background check, medical examination, or psychological examination.
expanded certification for the seventh appointment. The Commission unanimously approved
Witherss motion.9
Kapler, with the assistance of Slavin, interviewed Candidates 1-9all white malesand
the three protected group candidates.10 When interviewing the top-ranked candidates, Kapler
looked to see if there was a red flag. Something that show[ed] up. It could be a gut-level
feeling . . . that might give us a clue that there is a concern about a candidate. When
interviewing the protected group candidates, Kapler looked to see if there was something that
might have been missed. Is there some quality or attribute this person brings that didnt come
out in the test that we can say, wow, this is a strong candidate regardless of their test scores.
Kapler failed Candidate 3 because he did not have his National Registry of Emergency
Medical Technicians (NREMT) certification. According to the Regulations, candidates must
present current [NREMT] certification or verification of registry eligibility before certification
of the eligibility list. Kapler also failed Candidate 4 because he did not appear for his interview.
Kapler then interviewed four additional candidatesCandidates 10-13. On February 13, 2006,
Kapler issued a memorandum containing his recommendations. In addition to not
recommending Candidates 3 and 4, he also did not recommend Candidate 10 because he was
not eligible for [NREMT registry] before the [eligibility] list was certified and Candidate 11
because he did not demonstrate the level of maturity and preparedness to be successful.
Kapler also did not recommend the three protected group candidates because they did not
demonstrate[] themselves to be equally or better qualified than the recommended individuals.
9 The record does not reflect why the Commission decided to certify candidates to the City
Council in advance of the required background check, medical evaluation, psychological
evaluation, and interview with the Fire Chief.
10 The Court refers to the candidates by reference to their ranking on the eligibility list.
The Commission discussed Kaplers recommendations on February 27, 2006. All three
Commissioners were present. At that meeting, Kapler indicated that he no longer recommended
two additional candidatesCandidate 2 because Kapler did not expect the results of the
candidates medical examination in time for hiring and Candidate 5 because he did not have his
NREMT certification when the eligibility list was certified. Of the top thirteen candidates,
Kapler did not recommend six, leaving the Commission with only seven recommended
candidates. Kapler requested an additional four candidates for interviews, and the Commission
tabled the recommendations for appointment.
Later in the meeting, two of the candidates deemed ineligible because they lacked
NREMT certification questioned the meaning of the NREMT registry eligible requirement.
After discussing whether the candidates received conflicting information about the meaning of
NREMT registry eligible, the Commission tabled the issue and requested clarification from the
Fire Department. The Commission then unanimously voted to permit the three candidates
Kapler had not recommended because they lacked NREMT certification or were not NREMT
registry eligible (collectively, non-NREMT candidates) to continue in the selection process.
According to Gilsrud, the City decided that the non-NREMT candidates were eligible for
appointment because it determined that the information provided to candidates regarding the
meaning of NREMT registry eligible was ambiguous. On March 15, 2006, Kapler issued a
memorandum recommending Candidates 1-3 and 5-10 for appointment.11 Kapler testified that
he changed his recommendation as to the non-NREMT candidates [o]nce the commission
11 The record does not reflect why Kapler changed his recommendation with respect to
Candidate 2, whom he had not recommended on February 27 because the results from the
candidates medical examination were not expected in time for hiring. Plaintiffs do not
challenge Kaplers changed recommendation with respect to Candidate 2 here.
declared them eligible. Kapler made no mention of the protected group candidates or
Candidates 11-13 in his March 15 memorandum. At a Commission meeting on the same day,
Withers and Powers voted to present the candidates as recommended by Kapler to the City
Council. Field was not present.
The City Council appointed Candidates 1-3 and 5-8 as firefighters as part of its consent
agenda on March 20, 2006. Shortly after the City Councils appointments, the press released the
news that one of the appointed firefighters had been convicted of vehicular homicide.12 In
response to calls from constituents about the appointments, Carr investigated the Citys hiring
process. During the course of his investigation, Carr concluded that the SAFER grant required
the City to seek, recruit, and appoint women and minorities. At an emergency meeting called to
decide whether to reconsider the appointments based on the appointment of a convicted felon,
Carr attempted to discuss whether the City had complied with the SAFER grant. Goslee advised
the City Council that compliance with the SAFER grant was not a topic for the emergency
meeting. The City Council did not discuss the SAFER grant and decided not to reconsider the
seven appointments, resulting in the hiring of Candidates 1-3 and 5-8.
Plaintiffs filed discrimination charges with the Minnesota Department of Human Rights
(MDHR) and the Equal Employment Opportunity Commission (EEOC). The MDHR found that
the evidence did not substantiate Plaintiffs allegations and issued right-to-sue letters in March
2007. The EEOC adopted the MDHRs findings and issued right-to-sue letters in April 2007.
Summary judgment is proper if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
12 The Regulations permit, but do not require, the Commission to reject an applicant any
time before the examination process or remove an applicant from the eligibility list any time
before actual appointment if the applicant was guilty of a crime.
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the
initial responsibility of informing the district court of the basis for its motion, and must identify
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its
burden, the nonmovant must respond by submitting evidentiary materials that set out specific
facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); see Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is
appropriate, a court must look at the record and any inferences to be drawn from it in the light
most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Torgersons Section 1981 Claim
The City contends that Torgersons claim under 42 U.S.C. 1981 should be dismissed
because he based his claim on national origin rather than race. Section 1981 does not apply to
claims of discrimination based on national origin. See Zar v. S.D. Bd. of Examiners of
Psychologists, 976 F.2d 459, 467 (8th Cir. 1992) (holding claim of discrimination based on
national origin is insufficient to state a 1981 claim). Torgerson contends that his 1981 claim
should not be dismissed because it is based on his Native American status and claims based on
Native American status have been treated as both race and national origin claims.
A party may bring a claim of discrimination based on Native American status as a claim
based on race, national origin, or both. See Dawavendewa v. Salt River Project Agr. Imp. &
Power Dist., 154 F.3d 1117, 1119 n.4 (9th Cir. 1998) (claims of discrimination on the basis of
ones status as a Native American are often brought as race discrimination claims, although they
have also been brought as national origin claims (citations omitted)). Torgerson, however, only
asserted discrimination on the basis of his national origin in his Complaint. Further, Torgerson
testified during his deposition that he believed the City discriminated against him based on his
national origin. At no point prior to the Citys motion for summary judgment had Torgerson
alleged discrimination based on race. Torgersons belated assertion of racial discrimination is
insufficient to avoid summary judgment.13 See N. States Power Co. v. Fed. Transit Admin., 358
F.3d 1050, 1056-57 (8th Cir. 2004).
B. Plaintiffs Title VII and MHRA Claims
Torgerson and Mundell make disparate treatment claims under Title VII and the MHRA
alleging discrimination on the basis of Torgersons national origin and Mundells sex. Title VII
provides that it is an unlawful employment practice for an employer . . . to fail or refuse to hire
. . . because of such individuals . . . sex . . . or national origin. 42 U.S.C. 2000e-2(a)(1). The
MHRA states that it is an unfair employment practice for an employer . . . because of national
origin [or] sex . . . to . . . refuse to hire or discriminate against a person with respect to hiring.
Minn. Stat. 363A.08, subd. 2. The Court analyzes MHRA and Title VII claims using the same
standard. See Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005).
Plaintiffs may survive summary judgment on their disparate treatment claims by
presenting either direct evidence of discrimination or creating the requisite inference of
unlawful discrimination under the framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973). See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.
2004). In the context of employment discrimination cases, direct evidence is not the opposite
of circumstantial evidence. See id. Rather, the term direct refers to the causal strength of the
proof. Id. [D]irect evidence is evidence showing a specific link between the alleged
13 Even if Torgerson had pleaded or asserted racial discrimination during this litigation, his
1981 claim would still fail for the same reasons his Title VII and MHRA claims fail. See
Saulsberry v. St. Marys Univ. of Minn., 318 F.3d 862, 866 (8th Cir. 2003).
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. See id. A plaintiff with direct evidence that illegal discrimination motivated the
employers adverse action does not need the three-part McDonnell Douglas analysis to survive
summary judgment, even if the strong evidence is circumstantial. Id. A plaintiff who lacks
evidence that clearly points to the presence of an illegal motive, however, can only avoid
summary judgment by creating the requisite inference of unlawful discrimination under the
McDonnell Douglas framework. Id.
Under the McDonnell Douglas framework, once the plaintiff employee establishes a
prima facie case of discrimination, the burden shifts to the defendant employer to articulate a
legitimate, nondiscriminatory reason for its actions. See Gilbert v. Des Moines Area Cmty.
Coll., 495 F.3d 906, 914 (8th Cir. 2007). If the defendant offers a legitimate, nondiscriminatory
reason, the burden shifts back to the plaintiff to put forth evidence showing the defendants
proffered explanation is a pretext for unlawful discrimination. Id.
1. Claims of Direct Evidence
Plaintiffs contend that two Commissioners made statements that are direct evidence of
discrimination. It is worth noting that the parties treat the concept of direct evidence as if it
were the opposite of circumstantial evidence. As the Court has just noted, in this circuit, the
term direct evidence has a different meaning in this context.
First, Plaintiffs offer Carrs testimony that Field said that he was not aware of the terms
of the SAFER grant with respect to hiring minorities and women and that if he had been aware of
the terms, he would have recommended that the City not take the grant. The City contends that
Fields statement is inadmissible hearsay that Plaintiffs cannot rely on to avoid summary
judgment. Because the Court concludes that taken either alone or in combination, neither
statement constitutes direct evidence of discrimination, it need not determine whether the
statements are inadmissible hearsay. See Sokol & Assoc., Inc. v. Techsonic Indus., Inc., 495 F.3d
605, 611 (8th Cir. 2007).
The Court turns to Fields statement, which the Court considers in the context of his
conversation with Carr. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006).
Carr described the conversation as follows:
I saidthe first question I asked [Field] was are you aware of all of the terms and
conditions of the SAFER grant. And then he said what do you mean? And I said,
well, they stipulated you hire women and minorities. And he said I knew nothing
of that. He said had I known, I would have recommended that the City not take
the grant. He said the City should never have taken the grant if that was the
As related by Carr, his description of the SAFER grant failed to mention the qualifying
language to the extent possible in the section requiring recipients to seek, recruit, and appoint
members of racial and ethnic minority groups and women.14 Testimony that Field recommended
against taking a grant that stipulated the City hire women and minorities, regardless of relative
qualifications, is not evidence of discriminatory animus. At most, it is evidence of concern that
the Commissioners have the discretion to hire the best-qualified firefighters.
Further, even if the Court assumes that Fields statement meant he would recommend
against receiving a grant requiring the City to hire women and minorities to the extent
possible, Fields statement has not been linked to any challenged decision. Direct evidence
does not include statements by decisionmakers unrelated to the decisional process itself.
Twymon, 462 F.3d at 933. There is no evidence that Field, who did not participate in Plaintiffs
14 Carr testified that his interpretation of the phrase to the extent possible in the SAFER
grant requirements meant the City should have hired women and minorities even if they were not
the best-qualified candidates.
panel interviews, could have affected Plaintiffs ranking on the eligibility list. Field also did not
participate in Plaintiffs interviews with the Fire Chief. Moreover, Field was not present at the
meeting on March 15, 2006, where the Commission voted to certify Candidates 1-3 and 5-10 to
the City Council, but did not expand the certification. There is no evidence that Field influenced
the City Councils decision not to reconsider the appointments. Because Fields statement is
unrelated to any challenged step in the decisional process, the Court cannot conclude that Fields
statement is direct evidence of discrimination.
Second, Carr testified that Withers said that he recommended a candidate who was a
convicted felon because [the candidate] was a big guy and [] hed make a good firefighter.
Plaintiffs assert that Witherss statement indicates that he acted with discriminatory animus.
With respect to whether Witherss statement reveals a discriminatory animus toward women, the
Court must consider the context in which Withers made the statement. See Twymon, 462 F.3d at
934. Withers made the statement while justifying the appointment of a convicted felon to a
firefighter position. Witherss statement is devoid of reference to women, and according to Carr,
Withers did not indicate that he had any concerns about a females ability to meet the physical
demands of firefighting. Withers observation that a candidate was a big guy and assessment
of the candidates potential as a firefighter in defense of the decision to appoint the candidate is
not evidence of discriminatory animus toward women.
Further, even if the Court assumes that Witherss statement is evidence of discriminatory
animus toward women, the only challenged decision relating to Mundell to which Withers has
any connection is the Commissions vote on March 15 to certify only the top-ranked candidates
to the City Council. Withers, however, moved and voted to expand the certification to include
the protected group candidates for the seventh position on January 18. He changed his vote after
Kapler recommended against their appointment. Given these facts, Witherss statement is
insufficient to support a finding by a reasonable fact finder that discriminatory animus toward
women motivated the Citys decision not to appoint Mundell, and is not direct evidence of
With respect to Torgerson, Witherss statement did not refer to Native Americans or
national origin. Witherss facially-neutral statement, without more, is not direct evidence of
discrimination against Torgerson based on his Native American status. See Twymon, 462 F.3d at
2. Claims of Indirect Evidence
The Court turns to whether Plaintiffs have created the requisite inference of unlawful
discrimination under the McDonnell Douglas framework. The parties dispute whether Plaintiffs
have established a prima facie case of discrimination. For the purposes of summary judgment,
the Court will assume, without deciding, that Plaintiffs have made a prima facie showing. See
Montes v. Greater Twin Cities Youth Symphonies, 540 F.3d 852, 857 (8th Cir. 2008).
The City contends that Plaintiffs lower ranking on the eligibility list is a legitimate,
nondiscriminatory reason for its decision not to hire them. Plaintiffs respond that the Citys
explanation is pretext for discrimination. To succeed on this claim, Plaintiffs must both discredit
the Citys reason for not hiring them and show that circumstances permit drawing the reasonable
15 Plaintiffs note in their brief that Withers and Powers signed Fire Civil Service
Commission Review forms (review forms) for Plaintiffs early in March 2006, before the
Commissions March 15 vote to certify Candidates 1-3 and 5-10 to the City Council. Field never
completed review forms for Plaintiffs. Withers and Powers both indicated yes in a section of
the form titled recommendation for appointment. Gilsrud testified that the forms meant that
the Commissioner had reviewed each candidates application packet, found all items were
present, and determined that the person could be recommended based on the information.
Plaintiffs do not explain the relevance of the forms to their discrimination claims and have not
offered any evidence contradicting Gilsruds testimony. The Court concludes that the review
forms do not support an inference of discrimination.
inference that the real reasons they were not hired were that Mundell is female and Torgersons
national origin is Native American. See Johnson v. AT&T Corp., 422 F.3d 756, 763 (8th Cir.
2005). There are at least two ways a plaintiff can establish a question of fact regarding pretext.
Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006). A plaintiff may show
pretext with evidence that the employers explanation is unworthy of credence because it has no
basis in fact. Id. (quotation marks and citation omitted). Alternatively, a plaintiff may show
pretext by persuading the court that a prohibited reason more likely motivated the employer. Id.
(quotation marks omitted).
Plaintiffs make several arguments regarding pretext. First, Plaintiffs attack the validity of
the panel interview scores, and consequently the validity of the candidates final ranking.
Although subjective employment procedures are susceptible of discriminatory abuse and
require close scrutiny, subjectivity alone does not render an employment decision infirm.
Brooks v. Ameren UE, 345 F.3d 986, 988 (8th Cir. 2003) (citation omitted). The panel interview
process used to interview the candidates was subject to several controls. The panel consisted of
representatives from the HR Department, the Commission, and the Fire Department. Panel
interviewers were given established scoring criteria and took turns asking predetermined
questions. Candidates received a list of possible questions before the interview. Based on these
facts, the Court concludes that the City took effective steps to minimize the panel interviews
susceptibility to abuse.
Other evidence compels a conclusion that the panel interview scores are not suspect.
Mundells overall ranking increased as a result of her panel interview. The other female
candidate received the fifteenth highest score on the panel interview. Although Torgersons
ranking decreased as a result of his panel interview score, he testified that he found interview
questions asking him to relate personal examples more of a challenge because he had not yet
worked as a full-time firefighter. Further, Plaintiffs have not offered any evidence showing that
they received lower scores than white male candidates for similar answers. Counsel for
Plaintiffs stated at the hearing that they were unable to determine if Plaintiffs received lower
scores for similar answers because the City had not retained the panel interviewers notes, but
also explicitly disavowed any allegations of spoliation. In the absence of spoliation, the Court
declines to read an adverse inference into the Citys failure to retain the panel interviewers
notes.16 Plaintiffs have not shown that the panel interview scores or the final rankings had no
basis in fact or that discriminatory animus more likely than not motivated the panel interviewers
to give Plaintiffs lower scores.
Second, Plaintiffs contend that Kaplers application of two different standards when
interviewing the protected group candidates and the top-ranked candidates is evidence of pretext.
Kapler explained that he looked for a red flag when interviewing the top-ranked candidates
because they had already demonstrated their capabilities through the examination process. With
respect to the protected class candidates, Kapler testified that he sought to determine whether
they were strong candidates in spite of their lower rankings based on attributes demonstrated
during the interview that were not highlighted by the examination process.
While instances of disparate treatment can demonstrate pretext, Plaintiffs must prove they
were similarly situated to the hired candidates in all relevant respects. See Rodgers v. U.S.
Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005). At the pretext stage, the test for whether
Plaintiffs were similarly situated to the hired candidates is rigorous. See id. Here, Plaintiffs
16 Moreover, counsel for Plaintiffs had access to all candidates score sheets. Plaintiffs
could have deposed other candidates to compare those candidates answers to Plaintiffs answers
and determined if the two groups received different scores for similar answers.
were not similarly situated to the hired candidates in at least one relevant respecttheir ranking
on the eligibility list. Plaintiffs contend that they were similarly situated to the hired candidates
because they were qualified by virtue of their presence on the eligibility list and because Gilsrud
and Kapler both acknowledged that the ranking is not a necessary hiring order due to the narrow
spread of the final scores.
Although ranking is not a determinative hiring factor, the Court cannot ignore its
importance. After all, the Minnesota Legislature requires the Commission to establish public
competitive examinations to test the relative fitness of applicants, to create and maintain a list of
eligible candidates in order of their standing in the examination, and to certify the three
names standing highest on the list of eligible candidates for any vacancy. Minn. Stat.
420.07(2), (4), (7) (emphasis added). The expanded certification also is made in rank order.
Id. 420.07. The Legislatures focus on the candidates rank order demonstrates its relevance.
Mundell and Torgerson were ranked 40th and 45th, respectively, while the hired candidates were
ranked in the top ten. Given the significant difference in their ranking, Plaintiffs and the hired
candidates were not similarly situated in all relevant respects. Kaplers decision to evaluate the
protected group candidates and top-ranked candidates according to different standards is not
evidence of pretext.
Third, Plaintiffs argue that Kaplers application of a subjective standard is suspect and an
indication that the Citys explanations for not hiring Plaintiffs are pretext. Kapler conceded that
his interview was wholly subjective and that there was no objective reason why he did not
recommend Plaintiffs. The Court therefore closely scrutinizes Kaplers decision not to
recommend Plaintiffs. See Brooks, 345 F.3d at 988.
Kapler used his interview to measure the candidates personality, character, and
communication skills. He testified that those qualities are important because firefighting is a
team environment and because firefighters need to understand, give, and repeat orders without
confusion. Plaintiffs have not shown that those factors are not legitimate considerations for the
City. Further, Kapler testified that the top-ranked candidates who passed his interview
communicated well, understood customer service, conducted themselves well during the
interview, and had good composure. In contrast, he testified that Torgerson was awkward in
terms of his verbal abilities and unsophisticated and that Mundell did not demonstrate that she
was better qualified than her ranking indicated.
Where the employer contends that the selected candidate was more qualified . . . than
the plaintiff, a comparative analysis of the qualifications is relevant to determine whether there is
reason to disbelieve the employers proffered reason for an employment decision. Chambers v.
Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 857 (8th Cir. 2003). If this comparison
successfully challenges the employers articulated reason for the employment decision, it might
serve to support a reasonable inference of discrimination. Id. A comparison that reveals that
the plaintiff was similarly qualified or not as qualified as the selected candidate, however, does
not raise an inference of discrimination. Id. No evidence suggests that Kaplers assessment of
Plaintiffs demeanor, personality, character, or communications skills was inaccurate. 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
Kaplers interview does not give rise to an inference of discrimination. See id. at 857-58.
Fourth, Plaintiffs challenge the fact that Slavin did not consider Plaintiffs standouts
despite the fact that Plaintiffs possessed many of the same objective attributes as the hired
candidates. Mundell and Torgerson had both applied to other fire departments, Mundell had
participated in ride-alongs, and Torgerson had experience as a part-time firefighter. Slavin
identified these attributes when explaining why the top-ranked candidates were standouts.
Slavin also identified the top-ranked candidates confidence, maturity level, intelligence, and
responses to questions about safety and customer service as factors contributing to his conclusion
that the top-ranked candidates were standouts. Showing that Plaintiffs possessed some of the
other qualities essential for success . . . does not suffice to raise an inference that [the Citys]
stated rationale for giving the position to another is pretextual. See Lidge-Myrtil v. Deere &
Co., 49 F.3d 1308, 1311 (8th Cir. 1995). [I]t it is the employers role to identify those strengths
that constitute the best qualified applicant. Arraleh v. County of Ramsey, 461 F.3d 967, 976
(8th Cir. 2006) (quotation marks omitted). Plaintiffs have not shown that Slavins assessment
has no basis in fact or that discriminatory animus motivated him to find the top-ranked
candidates, but not Plaintiffs, standouts.
Fifth, Plaintiffs contend that Kaplers description of the protected group candidates as
unfit is evidence of discriminatory animus. After Carr stated at a June 2006 meeting that the
City should not hire any more firefighters under the SAFER grant because the people that were
discriminated against were going to file a complaint with [] Homeland Security[,] a human rights
complaint, and . . . at some point this will probably end up in court, Kapler responded that he
had interviewed the protected group candidates and found them unfit. When asked about his
description of Plaintiffs as unfit, Kapler testified:
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 persons fitness for duty. So thats how I use the word fit. They
arethey are on our list as qualified candidates, so yes, theyre qualified to be
Kaplers distinction between qualified and fit does not give rise to an inference of
discrimination. Given the context of Kaplers statement and the absence of evidence suggesting
that he found Plaintiffs unfit based on their protected group status, Kaplers description of
Plaintiffs is not evidence of pretext.
Sixth, Plaintiffs contend that the Citys decision to hire the non-NREMT candidates, all
white males, is evidence of pretext. [The pretext] inquiry is limited to whether the employer
gave an honest explanation of its behavior, not whether its action was wise, fair or correct.
McKay v. U.S. Dept of Transp., 340 F.3d 695, 700 (8th Cir. 2003) (quotation marks omitted).
Gilsrud testified that the City permitted the non-NREMT candidates to proceed because the
information given the candidates regarding NREMT registry eligibility was inconsistent.
Plaintiffs have not shown this explanation is false. Instead, Plaintiffs argue that the City hired
the non-NREMT candidates to avoid hiring Plaintiffs. Plaintiffs base this contention on the
erroneous premise that the City was faced with the choice between hiring the non-NREMT
candidates and hiring Plaintiffs. In fact, the Citys choice was between hiring the non-NREMT
candidates and moving down the eligibility list to the next candidates. No evidence suggests
discriminatory animus motivated the Citys decision to hire the non-NREMT candidates. The
Citys decision to do so does not give rise to an inference of discrimination.
Plaintiffs additional claim that Kapler sought additional candidates to avoid
recommending Plaintiffs is without merit. Minnesota law required the Commission to certify the
three names standing highest on the eligibility list. See Minn. Stat. 420.07(7). The
Regulations required candidates to pass an interview with the Fire Chief before appointment.
Kaplers request for additional candidates to interview was required under Minnesota law and
the Regulations. His decision to interview the next four candidates, who happened to be white
males, does not give rise to an inference of discrimination.
Seventh, Plaintiffs assert that the Citys decision to hire five white male candidates in
August 2007 while declining to re-interview the protected group candidates is evidence of
pretext.17 In August 2007, the five top-ranked candidates on the eligibility list were Candidates
9-13. The rule of three required the City to certify the top-ranked candidates if they passed the
background check, the interview with the Fire Chief, and medical and psychological
examinations.18 Plaintiffs contend that the Citys decision to hire Candidate 11, whom Kapler
had not recommended in March 2006 because he felt the candidate lacked maturity, while
declining to re-interview Plaintiffs, is evidence of discriminatory animus. The Court is not
persuaded. Kapler testified that a candidate who did not pass the interview with the Fire Chief
remained on the eligibility list at the same rank. Thus, the rule of three required consideration of
Candidate 11. Consideration of Plaintiffs, who were ranked 40th and 45th, was not required.
The Citys disparate treatment of Plaintiffs and Candidate 11 is not evidence of pretext because
they were not similarly situated in all relevant respects. See Rodgers, 417 F.3d at 854. Further,
elimination of Candidate 11 would have resulted in the City considering the next candidate on
the list, not Plaintiffs.
The Court addresses two remaining issues. Plaintiffs, citing Carrs deposition transcript,
assert on page 18 of their brief that former Assistant Fire Chief Gary Smith related to Carr that
he had heard Chief Kapler and Deputy Chief Lovett say they did not want women on the
17 Plaintiffs do not claim the Citys decision not to re-interview them was retaliation.
18 Kapler re-interviewed Candidate 11 in August 2007.
department.19 Carrs testimony about what Smith told him about a meeting that took place
when the Fire Department hired its first female firefighter in the mid-1990s, offered to prove
what Kapler and Lovett said, is obvious hearsay. See Fed. R. Evid. 801(c). More importantly,
though, Plaintiffs assertion is inaccurate on a critical pointthe identity of the person(s) who
supposedly did not want women in the Fire Department. In his deposition, Carr testified:
[Smith] said that he was in a meeting with I believe Jerry Loftusyeah, Jerry
Loftus and others. Rick Lovett was there, and I believe Kapler may or may not
have been there. I believe Kapler was there as well. But in that narrative, he said
that Lovett said that we dont want to hire women unequivocally . . . he said that
Rick Lovett said that they did not want to hire women . . . .
Later, Carr testified that Lovett said that he . . . did not want to hire women. Contrary
to Plaintiffs representation to the Court, Carr did not testify that Smith said that Smith had heard
Kapler say he did not want women in the Fire Department. The Court can hardly overstate the
importance of accuracy in counsels descriptions of the record. Erickson v. Farmland Indus.,
Inc., 271 F.3d 718, 725 n.3 (8th Cir. 2001). No evidence suggests that Lovett had any input into
the challenged hiring, so, even if Carrs testimony were admissible, Lovetts statement would not
give rise to an inference of discrimination.
Second, Plaintiffs rely heavily on Carrs opinion of the hiring process, including Carrs
conclusion that the City discriminated against Plaintiffs, in support of their claims. Carr lacks
personal knowledge of the challenged hiring process. Many of his opinions were couched as
legal conclusions, which are unhelpful to the finder of fact. For these reasons, Carrs opinions
are inadmissible. See Fed. R. Evid. 701; Hurst v. United States, 882 F.2d 306, 312 (8th Cir.
1989) (A lay witness may give an opinion only if it is rationally based on the perception of the
witness and would help the factfinder determine a matter in issue.). Plaintiffs may not rely on
Carrs personal opinions to avoid summary judgment. See Fed. R. Civ. P. 56(e).
19 Smith has not had any official role with the City since 1994.
Because Plaintiffs have presented no evidence discrediting the Citys reason for not
hiring them or giving rise to an inference of discrimination, Plaintiffs have not met their burden
of showing that the Citys stated non-discriminatory reason was mere pretext for discrimination.
Accordingly, Plaintiffs have failed to establish that their claims of discrimination should survive
summary judgment.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
1. The Citys Motion for Summary Judgment [Docket No. 12] is
2. Plaintiffs Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.
Dated: December 15, 2008
s/ Joan N. Ericksen
United States District Judge


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