Backlund v. Hessen

• Decision Date: 06 November 1995
• Docket Number: Civ. 5-95-137.
• Citation: 904 F. Supp. 964
• Parties: Wade BACKLUND, on behalf of himself and all other persons similarly situated, Plaintiff, v. Neal J. HESSEN, Mary Peterson, and Janet Nelson, in their official capacities as members of the Civil Service Board of the City of Duluth, Minnesota, Karl Nollenberger, in his official capacity as Secretary and Responsible Authority of the Civil Service Board of the City of Duluth, Minnesota, Duane Flynn, in his individual capacity and in his official capacity as Chief of the Fire Department of the City of Duluth, Minnesota. The Civil Service Board of the City of Duluth, Minnesota, a political subdivision of the City of Duluth and State of Minnesota, and The City of Duluth, Minnesota, a municipal corporation and political subdivision of the State of Minnesota, Defendants.
• Court: U.S. District Court — District of Minnesota

904 F. Supp. 964

Wade BACKLUND, on behalf of himself and all other persons similarly situated, Plaintiff, v. Neal J. HESSEN, Mary Peterson, and Janet Nelson, in their official capacities as members of the Civil Service Board of the City of Duluth, Minnesota, Karl Nollenberger, in his official capacity as Secretary and Responsible Authority of the

Civil Service Board of the City of Duluth, Minnesota, Duane Flynn, in his individual capacity and in his official capacity as Chief of the Fire Department of the City of Duluth, Minnesota. The Civil Service Board of the City of Duluth, Minnesota, a political subdivision of the City of Duluth and State of Minnesota,

and

The City of Duluth, Minnesota, a municipal corporation and political subdivision of the State of Minnesota, Defendants.

Civ. 5-95-137.

United States District Court, D. Minnesota, Third Division.

November 6, 1995.

Peter J. Nickitas, Superior, Wisconsin, appeared on behalf of Wade Backlund,

City Attorney of Duluth by M. Alison Lutterman, Assistant City Attorney, Duluth, Minnesota, appeared on behalf of all Defendants.

ORDER

ALSOP, Senior District Judge.

BACKGROUND

The above-entitled matter came on for hearing before the Court on October 10, 1995 upon the Motion of Plaintiff for Summary Judgment and Permanent Injunction or Preliminary Injunction (docket no. 35), the Motion of Plaintiff for Attorney's Fees (docket no. 29) the Motion of Defendants for Dismissal or Summary Judgment (docket nos. 16 and 18), and the Motion of Defendants for Attorney's Fees (docket nos. 17 and 19).

Plaintiff is a white male who applied for a position as firefighter with the City of Duluth Fire Department (Fire Department) and was interviewed for open positions on two occasions but was not offered employment. After the second round of hires, Plaintiff discovered that of the four persons hired, three had relatives who were present or past employees of the Fire Department. One hiree's father is the former fire chief of the Fire Department and his brother is a training officer. A second hiree's father is assistant fire chief. A third hiree's brother is a captain in the Fire Department.

The Fire Department's hiring procedure is governed by Chapter 13 of the Duluth Civil Service Code (DCSC). The Code establishes rules for the selection of candidates and authorizes the Civil Service Board to administer the relevant tests, establish a list of eligible persons, and select according to the Code those candidates from the list who will be offered an interview. The Secretary of the Board creates the list of eligibles, taking passing candidates and ranking them according to their result. (DCSC § 13-34) When the hiring authority, in this case the Fire Department, has a position or positions available, it notifies the Board and the Secretary certifies a list of candidates to the hiring authority for consideration. (DCSC §§ 13-58, 13-60) The certified list is created by taking the top names on the eligible list in order of rank and giving the hiring authority the number as prescribed by the rules to satisfy the number of available positions. (DCSC §§ 13-60, 13-61) The DCSC states that certified applicants must appear for an interview but does not provide any guideline on the content or weighing of interviews. (DCSC § 13-63).

Plaintiff took the written exam in Fall 1993 and received the highest score. As a result he was placed number one on the list of eligibles issued December 8, 1993. The list is valid for two years and in essence guarantees him an interview for any position that would open up during that time. A firefighter position became available twice during this time, and on both occasions Plaintiff was invited for an interview along with other certified applicants. Plaintiff interviewed with a panel of seven people who had only the first names of the applicants and were not related to any of the applicants. The decision who to hire was made after the interview process was completed by Fire Chief Duane Flynn. Flynn was not a member of the interview panel, and according to Defendant Flynn was free to select any candidate and had no obligation to follow any recommendations that may have been given by the interview panel.

Plaintiff brings this suit claiming that the Fire Department's hiring practice violates rights guaranteed to him by the Constitution and federal law. Plaintiff makes several claims. First, he claims that the hiring discriminates against him on the basis that he has no family members who are past or present employees of the Fire Department and that such discrimination is prohibited and actionable under 42 U.S.C. § 1981 and 42 U.S.C. § 1983. Second, Plaintiff alleges that the interview was actually an oral test and that the Fire Department was obliged under DCSC §§ 13-52 and 13-56 and 29 C.F.R. § 1602.31 (1991) to retain notes made by the interviewers during the interviews. The facts indicate that any notes taken by interviewers were not retained. Plaintiff claims that the failure to retain notes from the interview violates his constitutional right to equal protection. Lastly, Plaintiff makes several state law claims under the Minnesota Constitution and the Minnesota Government Data Practices Act.

DISCUSSION

Under Fed.R.Civ.P. 56(c) the Court may grant a motion for summary judgment when the pleadings, affidavits and record show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering Defendant's motion for dismissal or summary judgment, the Court has reviewed materials outside the pleading and so will treat the motion as one for summary judgment. Summary judgment is proper if examination of the evidence in a light most favorable to the non-moving party reveals no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment is also proper if a party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

I. 42 U.S.C. § 1981 Claim

Plaintiff claims that Defendant unlawfully discriminated against him on the basis of kinship in violation of his rights under 42 U.S.C. § 1981. Section 1981 prohibits racial discrimination in the making and enforcing of contracts. It is well-established that employment contracts are among those protected by § 1981. See Johnson v. Railway Express, 421 U.S. 454, 459, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1974). The statute was amended by the Civil Rights Act of 1991 to expressly include acts of states and municipalities. 42 U.S.C. § 1981(b). There is no legal support however for Plaintiff's proposition that § 1981 applies to discrimination based upon kinship.

The Eighth Circuit has held that a § 1981 claim that fails to allege racial discrimination is barred. Forbes v. Arkansas Educational Television, 22 F.3d 1423 (8th Cir.1994) cert. denied ___ U.S. ___, 115 S.Ct. 500, 130 L.Ed.2d 409. Plaintiff is a white male and has not alleged racial discrimination. Plaintiff argues that § 1981 applies to discrimination based upon kinship, citing St. Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). The Court finds that St. Francis College does not support Plaintiff's argument. St. Francis College addressed a § 1981 claim by a U.S. citizen born in Iraq who claimed that he was denied tenure on the basis of his Arabian ancestry. The Court held that unlawful discrimination based upon race should be understood as discrimination based upon ancestry or ethnic characteristics, such as being born an Arab. Id. at 613, 107 S.Ct. at 2028. Nowhere in St. Francis College does the Court hold that discrimination based upon kinship or favoritism towards relatives is unlawful racial discrimination. Whether or not this Court may think that decisions concerning hiring and promotion should ideally be based upon merit and achievement, as other Courts have maintained, see Regents of the University of California v. Bakke, 438 U.S. 265, 361, 98 S.Ct. 2733, 2784, 57 L.Ed.2d 750 (1978), Holder v. City of Raleigh, 867 F.2d 823, 825-26 (4th Cir.1989), the Court finds there is no legal basis to support a finding that discrimination based upon kinship violates the statute. Accordingly, Defendant's motion for summary judgment on Plaintiff's § 1981 claim will be granted.

II. 42 U.S.C. § 1983

Plaintiff offers several arguments to support his claim that Defendants are liable under 42 U.S.C. § 1983. Section 1983 provides redress for the violation of a right, privilege or immunity secured by the Constitution or federal laws by a person acting under color of state law. Plaintiff alleges in his written submissions that Defendants violated his due process rights, but at oral hearing Plaintiff abandoned this claim. The Court considers the due process claim withdrawn.¹ Plaintiff also argues that Defendant has violated the fourteenth amendment right to equal protection. Plaintiff offers two arguments in support of this claim. First, Plaintiff argues that Defendant's alleged discrimination based upon kinship violates equal protection. Second, Plaintiff contends that destroying the results of the oral interview violates 29 C.F.R. § 1602.31 and the right to equal protection.

Plaintiff contends that Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947) indicates that he has a claim for denial of equal protection based upon nepotism or favoritism in government hiring. In Kotch the Supreme Court considered a Louisiana Statute governing the appointment of river pilots that permitted discrimination against applicants without family connections in the river piloting business. The statute gave current pilots control over the selection of apprentice pilots and in...