Here’s a rare and important victory in a federal age discrimination case involving a Minnesota city’s failure to promote a 51-year-old police lieutenant to the position of chief of police because he was “retirement eligible.”
A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Minneapolis rejected the City’s theory that its action were not-discriminatory because its motive was to hire a long-term police chief. The City relied upon a theory expounded by the U.S. Supreme Court in 1993 that it is not age discrimination if an employer is motivated by a reason that is related to but “analytically distinct” from age discrimination (i.e. salary or pension status).
“On the facts here,” the appeals court ruled, “retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be ‘divorced from age.’” Moreover, the panel said that assuming a candidate is “uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits.”
The Court reversed the lower’s court’s dismissal of the case and remanded the case for further proceedings.
Lt. LeRoy Arthur Hilde, 51, a 29-year-veteran of the Eveleth police force, failed to win promotion in 2012 despite the fact he was the department’s only lieutenant and second highest in rank. It was not disputed that he had an excellent reputation on the force and he was recommended for promotion by the outgoing police chief. Hilde alleged the City violated the Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act.
A police committee that was responsible for filling the vacancy had, in the past, promoted only internal candidates. However, this time, the three-member committee sought both internal and outside applicants. It selected Timothy Howard Koivunen, 43, a police detective from Virginia, Minnesota,
The City did not deny that a factor in the commission’s decision was that Hilde was “retirement eligible.” Koivunen had at least eight more years before he could retire.
The appeals court also rejected the lower court’s finding that Hilde failed to show the city’s reason for failing to hire him was a pretext for age discrimination. The panel was troubled by markings on the scoring sheets that indicated Hilde’s scores were altered, noting that the commissioners denied or claimed not to remember changing Hilde’s scores.
“Before the interviews, Hilde was the most qualified candidate with more than double Koivunen’s score,” the appeals panel noted.
Hilde received the same mediocre score of 69 from each commissioner for his interview, while Koivunen received a uniform score of 100 from each of the commissioners. At the end of the scoring, both candidates were tied.
The panel concluded the evidence showed the committee members wanted to “level” the scores of the two candidates so they would be “similarly qualified”’ and that this called into question “the objectivity of the entire hiring process.” Moreover, the appeals court states that an employer’s failure to follow its own policies may support an inference of discrimination when the departure affects only the affected candidate.
The appeals court also disagreed with the City’s claim that Koivunen was the ‘obviously superior candidate,” noting “this is refuted by its rankings of Koivunen and Hilde as tied.”
Finally, the appeals court rejected the lower court finding that the difference in age between Hilde and Koivunen – eight years – was not substantial. The appeals court noted that it had previously ruled that a difference of six years was substantial.