Torgerson v. City Of Rochester
| Citation | 605 F.3d 584 |
| Decision Date | 21 May 2010 |
| Docket Number | No. 09-1131.,09-1131. |
| Parties | David TORGERSON; Jami Mundell, Appellants,v.CITY OF ROCHESTER, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Leslie Lyn Lienemann, argued, Celeste E. Culberth, on the brief, St. Paul, MN, for appellant.
Patricia Ytzen Beety, argued, St. Paul, MN, for appellee.
Before MURPHY, SMITH, and BENTON, Circuit Judges.
David Torgerson and Jami Mundell (collectively, “appellants”) challenged the City of Rochester, Minnesota's decision not to hire them as firefighters. Torgerson and Mundell alleged that Rochester discriminated against them in violation of state and federal law. Torgerson, a Native American male, alleged discrimination on the basis of national origin. Mundell, a white female, alleged gender discrimination. Torgerson and Mundell made the claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C §§ 2000e-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 district court granted Rochester's motion for summary judgment. For the reasons set forth below, we affirm in part and reverse in part.
Rochester followed a state statute-driven process for hiring firefighters. In accordance with Minnesota Statute § 420.06, Rochester's Fire Civil Service Commission (“the Commission”) oversees the employment of all officers of the Rochester Fire Department (“Fire Department”). The Commission consists of three Commissioners, and any Commission action requires an affirmative vote by at least two Commissioners.
According to the Commission's Fire Civil Service Rules and Regulations (“the Regulations”), if a candidate possesses the minimum requirements to apply, 1 candidates must then pass written and physical fitness tests to be eligible for appointment. Phase I of the examination process is a written test, which counts for 30 percent of a candidate's final score. The candidates who receive the 50 highest scores on the written test advance to Phase II, the physical agility test. The physical agility test also accounts for 30 percent of a candidate's final score.2 Of the 50 candidates who participate in Phase II, all who pass the physical agility test advance to Phase III, which is an interview with a three-person panel.
All three panel interviewers score a candidate's responses to the interview questions on a scale of 1 to 10. One panel interviewer represents the Commission, one represents Rochester's human resources department, and one represents the Fire Department. The human resources department provides a set of interview questions and instructs the panel on how to ask the questions and what responses are considered good responses. These questions are also distributed to the candidates prior to the interview. The panel interviewers are given objective scoring criteria to establish which indicators show whether a candidate has desired qualities. Nonetheless, Rochester concedes that the panel interview contains inherent subjectivity. This panel interview accounts for the final 40 percent of a candidate's final score.3 Based on the scoring from the three phases of the selection process, each candidate is ranked and placed in rank order on an eligibility list that the Commission then certifies. The Commission then votes to certify the eligibility list, which stands for two years. All candidates on the eligibility list are qualified for the position of firefighter, although those ranked higher are considered more qualified.
According to the Regulations, when a vacancy is anticipated or occurs, the fire chief must make a written request to the Commission to certify to the Rochester City Council (“City Council”) the names of the persons eligible for appointment. Minnesota Statute § 420.07(7) requires the Commission to certify “the three names standing highest on the appropriate list to fill any vacancy” (“rule of three”). Section 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 Rochester's approved affirmative action goals.4 This expanded certification is in addition to the rule-of-three certification and is made in rank order.
The rule of three requires the Commission to certify nine candidates for seven open positions. For example, the Commission must certify the first, second, and third-ranked candidates for the first position. Then, assuming Rochester appoints the highest-ranked candidate for the first 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 ninth-ranked 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 procedure. However, before certification, each candidate eligible for certification for appointment, including any protected-group candidate, must pass one final stage.
The final candidates must pass a background check and an interview with the fire chief, as well as medical and psychological examinations. 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 Council member Patrick Carr, the City Council abides by the recommendations the Commission offers. In the past, Rochester has used an expanded certification to hire women and non-white firefighters who were not ranked at the top of the eligibility list. However, if a protected class applicant moves on to the fire chief interview, the candidate retains his or her original rank on the eligibility list. Therefore, although all candidates on the eligibility roster meet the minimum qualifications for the firefighter position, those at the top of the list are recognized as more qualified for the position than those at the bottom of the list.
The focus of the final fire chief interview changes when it comes to interviewing candidates lower on the list pursuant to expanded certification. Ordinarily, the final interviews are used to determine if the testing in Phases I, II, and III missed something that shows there is a reason not to hire a candidate. With respect to protected-class candidates who rank on the bottom of the list, however, the interviews are used to see if the testing missed something that shows there is a reason to hire the candidate over those scoring higher in the process.
In fall 2005, Rochester sought to hire seven firefighters. Rochester received funding for three positions through a federal “Staffing for Adequate Fire and Emergency Response” (SAFER) grant. The SAFER grant provided federal funds to aid Rochester in hiring additional firefighters. The grant itself outlines its purpose:
The purpose of the SAFER grant is to award a grant directly to volunteer, combination, and career fire departments to help the departments increase their cadre of firefighters. Ultimately, the goal is for SAFER grantees to enhance their ability to attain 24-hour staffing and thus assuring their communities have adequate protection from fire and fire-related hazards.
Program Guidance for the Staffing for Adequate Fire and Emergency Response (SAFER) Grants 3 (May 2005), available at www. fishers. in. us/ egov/ docs/ 1118931743_ 470855. pdf.
The grant contained a list of “Grantee Responsibilities” which included the following: “Grantees, to the extent possible, will seek, recruit, and appoint members of racial and ethnic minority groups and women to increase their ranks within the applicant's department.” Id. at 18.
In 2005 Rochester began a hiring process that resulted in the certification of 48 candidates on the eligibility list. The eligibility list included three protected-group candidates: Torgerson, Mundell, and a second white female not a party to this appeal. Torgerson is a member of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin. At the time of his application to the Fire Department, he was a volunteer firefighter. Torgerson had completed three years of college toward a degree in fire protection, including completion of Fire Fighter I and Fire Inspection courses, for which he held licenses. He had received certifications as an Emergency Medical Technician (EMT) from the National Registry of Emergency Medical Technicians (NREMT) and the Minnesota Emergency Medical Services Regulatory Board. Mundell, at the time of her application, had an associate degree in business management and had earned a diploma in intensive care paramedics from a local community college. She had a NREMT certificate, and her EMT-Basic license. She also received licenses for completing Fire Fighter I and Fire Fighter II courses.
At the end of the objective written and agility phases of the examination process (Phases I and II), Torgerson was ranked 41st and Mundell was ranked 46th out of 48 candidates. By virtue of passing the agility test, both candidates advanced to the panel interview phase. Mundell's score sheet indicates that Battalion Chief Charles Hermann, Rochester Human Resources Risk Management Analyst Joan Till-Born, and Commissioner Joe Powers conducted Mundell's panel interview. According to Torgerson's score sheet, Till-Born, Hermann, and Commissioner John Withers conducted Torgerson's panel interview. Both Torgerson and Mundell agree that the questions asked were what they anticipated based...
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