Lt. LeRoy Hilde v. City of Eveleth, a Minnesota political sub-division

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1016
___________________________
Lt. LeRoy Hilde
lllllllllllllllllllll Plaintiff - Appellant
v.
City of Eveleth, a Minnesota political sub-division
lllllllllllllllllllll Defendant - Appellee
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AARP
lllllllllllllllllllllAmicus on Behalf of Appellant
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: November 13, 2014
Filed: February 5, 2015
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Before MURPHY, MELLOY, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.

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The City of Eveleth did not promote LeRoy Arthur Hilde to Chief of Police.
Hilde—age 51 and retirement-eligible—claims that the City violated the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 623(a)(1), 631(a), and the
Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.08, subd. 2. He appeals
from summary judgment for the City. Having jurisdiction under 28 U.S.C. § 1291,
this court reverses and remands.
I.
In January 2012, Chief of Police Brian Lillis announced his retirement. Hilde,
on the force for 29 years, applied for the position. He was its only Lieutenant, the
second-highest rank. A three-member commission controls hiring, promoting,
discharging, and suspending the City police employees. Minn. Stat. §§ 419.02,
419.05. The commissioners in 2012 were John Richard England, Mary Debevec, and
Gary Skerjance. Between 1990 and 2012, the commission promoted internally, never
seeking outside applications for vacancies. When one commissioner asked Chief
Lillis whether any internal candidates met the minimum qualifications for his position,
Lillis said that the three internal candidates were qualified but “one is not interested,”
referring to Hilde (Hilde denies telling anyone he was uninterested in the position).
The commissioners, recruiting both internally and externally, selected four finalists,
including Hilde and an external candidate, Detective Timothy Howard Koivunen.
Hilde had earned a high level of respect from Chief Lillis and the officers he
supervised. The commissioners also agreed Hilde was an excellent Lieutenant. As
Lieutenant, Hilde served as acting Police Chief when Lillis was unavailable. Hilde
had an Associate’s degree in law enforcement, and he had completed all continued
training (though he did not enroll in leadership or management classes). Koivunen
had served with the city of Virginia, Minnesota, for 18 years, reaching the rank of
Detective. He had a Bachelor’s degree in criminal law. Commissioner Debevec said
that she personally chose Koivunen because his education included “some of the more
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current schools.” Lillis also noted Koivunen’s more “contemporary training made
him an appealing candidate to the [c]ommission.”
The commission’s protocol for hiring the Chief was to score three criteria:
weighted years of service, training and employment, and an interview. Usually, each
commissioner independently scored each candidate. The weighted-years-of-service
score counted the candidate’s actual years of police service with double credit for time
as Sergeant and triple for Lieutenant. The City agrees that the weighted years of
service could not be much higher than 65. The training-and-employment score was
subjective, with a maximum of 20 points “awarded for specialized training, education
or prior employment relevant to the job of Chief of Police.” As for the interview
points, the commissioners rated each candidate’s appearance, greeting, presence, and
closure on a scale of 1 to 5, and each candidate’s answers to eight interview questions
on a scale of 1 to 10. The maximum interview score was 100 points. The maximum
total score for a finalist was about 185.
Before the interview, Hilde had a service score of 65—29 years of service,
including 8 years as Sergeant and 14 years as Lieutenant—the highest of the finalists.
He received 9 out of 20 on training-and-employment, the lowest of the finalists.
Questioned about this score, neither the commissioners nor Lillis (who was involved
in scoring) could explain how they arrived at it. Koivunen received a service score
of 28—18 years of service, including 5 years as Detective, which the commission
equated to Lieutenant. Koivunen scored 15 out of 20 for his training-and-
employment, the highest of the finalists. The commissioners attributed this to his
four-year degree and his participation as a Drug Abuse Resistance Education
(D.A.R.E.) instructor at local schools. Before the interviews, Hilde led with a score
of 74; Koivunen was second with 43 points.
After interviewing the candidates, the commissioners asked Lillis to leave the
room while they deliberated (which he says was not typical). Before leaving, he told
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them that Hilde was the right choice for the position and that should be “accurately
reflected in the scores.” Each commissioner gave Koivunen perfect 100 scores for his
interview, a first according to Lillis. The commissioners claimed either to have no
recollection of changing Koivunen’s scores or to have independently reached these
scores before deliberating. Hilde’s interview sheets also reported identical scores
between the commissioners for each component of his interview, totaling 69 points.
Hilde and Koivunen thus each had 143 points after the interview, placing them in a
tie for the position—also a first according to the commissioners and Lillis.
Two of the commissioners denied (or claimed not to remember) changing
Hilde’s scores, although markings on the scoring sheets were altered. Commissioner
England stated in his deposition that they had “obviously” agreed on “leveling”
Hilde’s interview scores to reach a consensus.1 The scores for the other two finalists
varied greatly between the commissioners.
When Hilde applied, he was 51 years old. Koivunen was 43. A City officer
with at least three years of service is retirement-eligible at 50. Minn. Stat. § 353.01,
subd. 47(c)(1); § 353.651. Hilde’s age made him retirement-eligible. As
Commissioner England said, “[W]e 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.” Koivunen’s age ensured he would not retire for another seven
years.
1Q. So did you decide to coordinate your scoring of Hilde after you had already
scored him separately once?
A. You mean each scored him separately? Yes, obviously.
Q. So did some judges change their scores for LeRoy Hilde?
A. Well, you had to. If three of us were going to agree, some came up, some
came down, and we agreed on the score.
. . . .
Q. And as a consequence, he ended up tied with Tim Koivunen, correct?
A. Correct.
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Chief Lillis believed that the commissioners were looking to hire “long-term,”
recalling, “Based on what I know about the whole—well, not only the process, but the
things that were said after the process, I think that [Hilde’s potential retirement date]
probably did come into consideration.” Hilde never told the commissioners he was
seeking retirement or would not be committed to the position.2 In a meeting with the
unsuccessful candidates, Commissioner England said that Hilde’s eligibility for
retirement “might have” been a factor in the commission’s decision.
Hilde sued the City, alleging he was passed over for the position on account of
his age in violation of the ADEA and MHRA. The district court granted summary
judgment to the City, finding Hilde failed to establish a prima facie case because
Koivunen was only eight years younger, which was not “substantially younger.” The
court also ruled that Hilde failed to show the City’s stated reasons for the decision
were pretextual.
II.
A.
This court reviews de novo a grant of summary judgment, viewing the facts
most favorably to the non-moving party with the benefit of all reasonable inferences.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
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 movant is entitled to judgment as a matter of law.” Id.
The ADEA and the MHRA prohibit age-based employment discrimination. See
29 U.S.C. § 631(a)(1) (prohibiting employer from discriminating on age if employee
2Hilde had recently learned that if he retired, he would not receive full benefits
for some time. He never disclosed this to the commissioners.
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over 40); Minn. Stat. § 363A.08, subd. 2 (generally prohibiting age discrimination).
This court analyzes the claims together under the three-step, burden-shifting test in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Rahlf v. Mo-Tech Corp.,
642 F.3d 633, 636 & n.2 (8th Cir. 2011). To establish age discrimination, a plaintiff
must prove by the preponderance of the evidence that age was the but-for cause of the
employment decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)
(“[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse
action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.”).
By identifying direct evidence of discriminatory motive, a plaintiff overcomes
summary judgment, foregoing the McDonnell Douglas analysis. Torgerson, 643 F.3d
at 1044. Direct evidence includes circumstantial evidence if the plaintiff shows “a
specific link between a discriminatory bias and the adverse employment action,
sufficient to support a finding by a reasonable fact-finder that the bias motivated the
action.” Id. at 1046. See also EEOC v. City of Independence, 471 F.3d 891, 894 (8th
Cir. 2006) (“To succeed on a disparate treatment claim, the plaintiff must show the
employee’s age ‘actually played a role in [the employer’s decisionmaking] process
and had a determinative influence on the outcome.’” (alteration in original)), quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000).
“But if the plaintiff lacks evidence that clearly points to the presence of an
illegal motive, he must avoid summary judgment by creating the requisite inference
of unlawful discrimination through the McDonnell Douglas analysis, including
sufficient evidence of pretext.” Torgerson, 643 F.3d at 1044. Under McDonnell
Douglas, an employee first establishes a prima facie case of discrimination.
McDonnell Douglas, 411 U.S. at 802. The burden of production then shifts to the
employer to “articulate some legitimate, nondiscriminatory reason for the employee’s
rejection.” Id. See also Torgerson, 643 F.3d at 1047 (“The burden to articulate a
nondiscriminatory justification is not onerous, and the explanation need not be
demonstrated by a preponderance of the evidence.”). If the employer offers such a
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reason, the burden shifts back to the plaintiff to evidence that the employer’s proffered
explanation is pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at
804. A plaintiff provides sufficient evidence of pretext by showing that “the
employer’s explanation is unworthy of credence . . . because it has no basis in fact .
. . . [or] by persuading the court that a [prohibited] reason more likely motivated the
employer.” Torgerson, 643 F.3d at 1047 (second alteration in original). See also
Reeves, 530 U.S. at 143 (plaintiff overcomes summary judgment by showing
employer’s proffered explanation is unworthy of credence). “At all times, the plaintiff
retains the burden of persuasion to prove that age was the ‘but-for’ cause of the
termination.” Rahlf, 642 F.3d at 637, citing Gross, 557 U.S. at 176-77.
B.
Here, the commissioners did not directly reference Hilde’s age in their hiring
process. Because Hilde fails to show a “specific link” to age discrimination, the
McDonnell Douglas analysis applies. See Torgerson, 643 F.3d at 1046.
The parties agree that Hilde satisfies the first three prima facie elements: he
was (1) over 40 at the time of the challenged decision, (2) not hired (or promoted), and
(3) qualified for the job. Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d
507, 515 (8th Cir. 2011) (fourth element whether employer hired younger person to
fill position). They dispute whether age was a factor in the City’s decision. When an
employer offers reasons why age was not a but-for factor in its decision, this court
may move to the next steps in McDonnell Douglas: whether the proffered reason is
legitimate and nondiscriminatory, or whether it is pretext for unlawful discrimination.
Steward v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007) (“[I]f an
employer has articulated a legitimate reason for its actions, it is permissible for courts
to presume the existence of a prima facie case and move directly to the issue of
pretext.”). See also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983) (“The prima facie case method established in McDonnell Douglas was never
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intended to be rigid, mechanized, or ritualistic,” and “[w]here the defendant has done
everything that would be required of him if the plaintiff had properly made out a
prima facie case, whether the plaintiff really did so is no longer relevant.” (internal
quotation marks omitted)).
1.
First, the City argues that Hilde’s retirement eligibility was wholly unrelated
to age. This issue is whether the commissioners viewed Hilde’s retirement eligibility
as wholly independent from his age, or whether they used retirement eligibility as a
proxy for age in order to discriminate against him. See Hazen Paper Co. v. Biggins,
507 U.S. 604, 612-13 (1993) (defining a proxy for age as a situation where employer
targets employees eligible for pension on assumption that they are older). Hilde was
eligible for retirement because he was over 50. The commissioners were aware of his
eligibility, they were looking for someone to fill the position “long-term,” and
Commissioner England told the unsuccessful finalists that Hilde’s eligibility to retire
“might have” played a role in the commission’s decision. The City does not deny that
the commissioners considered Hilde’s retirement in reaching a decision; it argues that
retirement eligibility is evidence of an employee’s lack of commitment to a job, a
legitimate concern.
The district court concluded that “it is not improper for an employer to consider
a candidate’s eligibility for retirement when making a hiring decision.” Hilde v. City
of Eveleth, 986 F. Supp. 2d 1068, 1076 (D. Minn. 2013), citing Hazen Paper, 507
U.S. at 611. In Hazen Paper, the Court found the plaintiff’s years of service, distinct
from age, triggered pension benefits. Hazen Paper, 507 U.S. at 608, 613 (employer
does not necessarily violate ADEA by making employment decisions based on
pension benefits that vest solely based on years of service and not age, even though
the two factors are “empirically correlated” and employer could “take account of one
while ignoring the other”).
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[A]s a matter of pure logic, age and pension status remain “analytically
distinct” concepts. That is to say, one can easily conceive of decisions
that are actually made “because of” pension status and not age, even
where pension status is itself based on age.
Kentucky Ret. Sys. v. EEOC, 554 U.S. 135, 143 (2008), quoting Hazen Paper, 507
U.S. at 611.
One purpose of the ADEA is to ensure candidates are evaluated “‘on their
merits and not their age.’” Hazen Paper, 507 U.S. at 610-11 (“Congress’
promulgation of the ADEA was prompted by its concern that older workers were
being deprived of employment on the basis of inaccurate and stigmatizing
stereotypes.”), quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422 (1985).
“When the employer’s decision is wholly motivated by factors other than age, the
problem of inaccurate and stigmatizing stereotypes disappears.” Hazen Paper, 507
U.S. at 611. To illustrate, the Court stated:
An employee who is younger than 40, and therefore outside the class of
older workers as defined by the ADEA, see 29 U.S.C. § 631(a), may
have worked for a particular employer his entire career, while an older
worker may have been newly hired. Because age and years of service
are analytically distinct, an employer can take account of one while
ignoring the other, and thus it is incorrect to say that a decision based on
years of service is necessarily “age based.”
. . . The prohibited stereotype (“Older employees are likely to be ___”)
would not have figured in this decision, and the attendant stigma would
not ensue. The decision would not be the result of an inaccurate and
denigrating generalization about age, but would rather represent an
accurate judgment about the employee—that he indeed is “close to
vesting.”
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Id. at 611-12. The Court, however, distinguished this from special cases where an
employer uses pension status, or some other criteria, as a proxy for age. Id. at 612-13
(“Nor do we rule out the possibility of . . . liability under . . . the ADEA where the
decision to fire the employee was motivated both by the employee’s age and by his
pension status.”). Such a special case occurs where an employer actually uses a
particular event (i.e. retirement eligibility) in making a hiring decision and that event
in turn occurs because the person has attained a protected age. See Erie Cnty.
Retirees Ass’n v. Cnty. of Erie, 220 F.3d 193, 211 (3d Cir. 2000) (finding Medicare
eligibility a proxy for age because it requires employee be 65 and have 10 years of
work). In this case, because Hilde had long had 3 years of service, his age was not
analytically distinct from his retirement eligibility.
Generally, “employment decisions motivated by factors other than age (such
as retirement eligibility, salary, or seniority), even when such factors correlate with
age, do not constitute age discrimination.” Cooney v. Union Pac. R.R. Co., 258 F.3d
731, 735 (8th Cir. 2001), quoting EEOC v. McDonnell Douglas Corp., 191 F.3d 948,
951 (8th Cir. 1999). See also Scott v. Potter, 182 Fed. Appx. 521, 526 (6th Cir. 2006)
(unpublished) (“In short, ‘retire’ and ‘age’ are not synonyms.”). However, this is true
only if these factors, although usually correlated, are wholly independent from age.
See City of Independence, 471 F.3d at 896 (“The city and the district court ignore that
the ‘correlated’ language in Hazen applies only where the employer’s decision is
‘wholly’ motivated by factors other than age. The key is what the employer supposes
about age.”). On the facts here, retirement eligibility is always correlated with age
because it is dependent on the employee reaching 50; it cannot be “divorced from
age.” See Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 802 (8th Cir. 2014)
(“insurance premiums are not divorced from age” where employer “presumed the rise
in one necessitated a rise in the other”).
To assume that Hilde was uncommitted to a position because his age made him
retirement-eligible is age-stereotyping that the ADEA prohibits. See Hazen Paper,
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507 U.S. at 610-11 (“It is the very essence of age discrimination for an older employee
to be fired because the employer believes that productivity and competence decline
with old age.”). The prohibited stereotype—older employees are likely to be less
committed to a job because they can retire at any time—figured in the City’s decision.
See id. at 612. Using retirement eligibility to presuppose lowered productivity or
dedication would not “represent an accurate judgment about the employee” unless
evidence other than age indicates that the employee would, in fact, retire. Id. at 612.
See also Lee v. Rheem Mfg. Co., 432 F.3d 849, 853-54 (8th Cir. 2005) (finding that
employer’s questions and concerns about job commitment were not discriminatory
because candidate had come out of retirement and stated during interviews that he was
only interested in earning short-term money).
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 City argues that Hilde should have convinced them that
though retirement eligible, he would not retire. According to Commissioner England:
I would have appreciated something out of [Hilde], some indication that
he wanted this job and was willing to commit for at least some period of
time. By not telling us anything, now you’re thinking in your mind,
what’s this guy thinking, what’s he doing. If he gets the Chief’s job,
he’s just going to take it and that’s going to be a feather in his hat and
he’s going to pull the trigger and retire? I would have liked some
commitment out of the guy.
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.
“This is not to say that discrimination occurred here, but that summary judgment
prematurely disposed of the issue.” Tramp, 768 F.3d at 802.
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2.
Alternatively, the City asserts as a legitimate, nondiscriminatory reason that,
retirement eligibility aside, Koivunen was simply “the most qualified candidate for the
position.” Where an employer claims that “the selected candidate was more qualified
for the position than the plaintiff, a comparative analysis of the qualification is
relevant to determine whether there is reason to disbelieve the employer’s proffered
reason for its employment decision.” Torgerson, 643 F.3d at 1048. If the candidates
were “evaluated on an objective performance scale by a uniformly applied process,
the subjectivity of some component cannot in and of itself prove pretext or
discriminatory intent.” Id. at 1049-50.
The City claims Koivunen was the “obviously superior candidate,” but this is
refuted by its rankings of Koivunen and Hilde as tied. 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.
An “employer’s failure to follow its own policies may support an inference of pretext”
when the departure affects only the affected candidate. Floyd v. Missouri Dep’t of
Soc. Servs., Div. of Family Servs., 188 F.3d 932, 937 (8th Cir. 1999). Hilde was the
only finalist to have his scores changed. Unlike the interviewers in Torgerson, the
commissioners here did not use a “uniformly applied process” and were unable to
clearly and specifically explain Hilde’s unreasonably low and altered scores. See
Torgerson, 643 F.3d at 1049-50 (granting summary judgment where interviewers
were “able to explain, in clear and reasonably specific terms, their reasons for
scoring”); Widoe v. Dist. No. 111 Otoe Cnty. Sch., 147 F.3d 726, 730-31 (8th Cir.
1998) (denying summary judgment for employer where plaintiff submitted evidence
that selection committee found her recommendations to be old and her education to
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be outdated, though the successful candidate “impressed every member of the
selection team with her credentials, experiences and her interview”).
True, an employer’s subjective choice between two candidates with “similar
qualifications” does not itself imply discrimination. See Torgerson, 643 F.3d at 1049-
50. In this case, there is more: the commissioners did not follow their hiring protocol.
They deliberately manipulated Hilde’s scores to ensure the candidates would be
“similarly qualified,” calling into question the objectivity of the entire hiring process.
See Floyd, 188 F.3d at 937; McKay v. U.S. Dep’t of Transp., 340 F.3d 695, 700 (8th
Cir. 2003) (probative evidence that the interview process was a sham may be used in
considering whether reasoning is pretext for discrimination); Dunlap v. TVA, 519
F.3d 626, 632 (6th Cir. 2008) (“[T]here was ample evidence supporting the district
court’s finding of pretext, including the contravention of TVA rules on conducting
interviews and measuring candidate merit, and the ultimate manipulation of the matrix
scores.”)
Additionally, before the interviews, the commissioners ranked Hilde’s training-
and-employment score (based on “relevant experience”) lowest of all candidates
without explanation—although his years-of-experience score was the highest. There
was no overall objective disparity between Hilde and Koivunen’s qualifications
(although Koivunen had fewer years of experience) to support the City’s argument
that Koivunen’s credentials were “obviously” superior. Hilde’s extremely low
training-and-employment score, without justification, is further evidence of pretext
when compared to the higher scores of other finalists with less training and
experience. Thus, Hilde has met his burden of showing the City’s reasoning—that
Koivunen was the most qualified candidate—may be pretext for discrimination.
The district court held that the eight-year age gap between Hilde and Koivunen
“dooms” Hilde’s case, finding Koivunen was not “substantially younger.” Hilde, 986
F. Supp. 2d at 1075. This court has assumed without deciding that even a six-year gap
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is substantial. Hammer v. Ashcroft, 383 F.3d 722, 726 (8th Cir. 2004) (“We assume,
arguendo, that the six-year age difference . . . was sufficient to support a prima facie
case.”). But see Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003)
(doubting whether nine-year gap is “sufficient to infer age discrimination”). 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.
The City is “certainly entitled to rely at trial on evidence that its employment
decision was based upon legitimate subjective criteria and subjective impressions that
were free of any discriminatory animus.” Widoe, 147 F.3d at 730. Here, there are
genuine issues of material fact whether the City discriminated against Hilde because
of his age.
* * * * * * *
Summary judgment is reversed, and the case remanded to the district court for
proceedings consistent with this opinion.
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