Kohn v. City of Minneapolis Fire Dept.

• Citation: 583 N.W.2d 7
• Decision Date: 25 August 1998
• Docket Number: No. C5-97-2075,C5-97-2075
• Parties: Brian KOHN, Respondent, v. CITY OF MINNEAPOLIS FIRE DEPARTMENT, Civil Service Commission, Appellant.
• Court: Court of Appeals of Minnesota

Page 7

583 N.W.2d 7

Brian KOHN, Respondent, v. CITY OF MINNEAPOLIS FIRE DEPARTMENT, Civil Service

Commission, Appellant.

No. C5-97-2075.

Court of Appeals of Minnesota.

Aug. 25, 1998.

Review Denied Oct. 20, 1998.

Syllabus by the Court

1. In a discrimination claim based on an examination for fire captain and resulting eligibility list that created an adverse impact on minorities, the fire department's acts of failing to promote a minority member constituted continuing violations, extending the time of the commencement of the statute of limitations until the last promotion.

2. When using statistical analysis to determine whether an examination created an adverse impact on minorities, if the sample size of the specific minority group at issue is too small to obtain a stable result, the court may compare all minorities to non-minorities and use other facts to determine whether the adverse impact exists.

3. The district court's determination of damages, except as to harm to reputation, was not clearly erroneous, and it did not abuse its discretion in trebling damages.

Sonja Dunnwald Peterson, Minneapolis, for respondent.

Jay M. Heffern, Minneapolis City Attorney, Larry L. Warren, Assistant City Attorney, Minneapolis, for appellant.

Considered and decided by AMUNDSON, P.J., PETERSON and SHUMAKER, JJ.

OPINION

SHUMAKER, Judge.

The district court found that the Minneapolis Fire Department's 1991 fire captain's examination had a statistically significant adverse impact on minority firefighters and awarded damages to minority firefighter Brian Kohn, who took the test but was not promoted. The fire department appeals, contending that the statute of limitations bars Kohn's claim and that the record did not support the finding of disparate impact or the award of damages. We affirm in part and reverse only as to the award of damages for harm to Kohn's reputation.

FACTS

The facts for the most part are undisputed. The Minneapolis Fire Department (MFD) has a history of discriminatory employment practices against racial minorities. Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir.1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972). The MFD employed almost no minority firefighters since 1930 until a 1979 consent order arising from Carter. Hispanics were among the protected classes identified in Carter. Testimony indicated that among minority groups, the MFD was most discriminatory against Hispanics in recruitment, hiring, and integration. The district court found that because of these recent discriminatory practices, "firefighters of color are still few in number at the MFD."

Respondent Brian Kohn is of Mexican national origin and is referred to as being Hispanic. He began working for the MFD as a firefighter in February 1986. In 1991, the MFD gave notice that it would hold an examination to create a list from which it would promote firefighters to the position of fire captain. Kohn applied for the promotion in February 1991. In addition to meeting the training and seniority requirements, he had performed the duties of captain "out of grade" on numerous occasions since 1990.

For the 1991 test, the MFD changed the weighting it had previously used to grade exams. It did so because it had determined that earlier examinations, which were based only on the results from a written test, had an adverse impact on minorities. Traditionally, minorities did better on the assessment center simulation examinations that replicated parts of the job and contained more job-related criteria. The MFD decided to weight the assessment center scores at 45%, the written exam results at 45%, and seniority at 10%. It had considered giving the assessment center scores even more weight but ultimately did not do so because of its history of reliance on the written portion and because the firefighters union protested the plan.

The MFD administered the fire captain's exam in April 1991. Of the 36 applicants who took the written portion of the exam, 33 passed and went on to take the assessment portion. Of these 33 applicants, 19 were non-minorities and 14 were minorities, including four Hispanics, five African Americans, and five Native Americans.

The MFD scored the exams and created an eligibility list, ranking the applicants in order of their scores. The MFD then used the list to make promotions in rank order to fire captain as the positions became available during the two-year period from August 26, 1991, to August 26, 1993. The MFD promoted 17 firefighters from the list; 13 were non-minority firefighters and four were minority firefighters, including three Native Americans and one Hispanic. The last promotion from the 1991 list occurred on July 14, 1993.

The MFD informed Kohn that he was ranked 20th on the list, but it did not publish the promotion list with names or rank of all of the applicants. Because only 17 vacancies for the captain position occurred, MFD did not promote Kohn. It was not until a May 1994 union meeting that Kohn learned that several African American firefighters who took the exam had brought charges of disparate impact discrimination. Although that matter had been settled, the parties were subject to a confidentiality order until October 4, 1994.

Kohn then filed a charge of discrimination with the Minneapolis Department of Civil Rights on July 8, 1994. The department dismissed the charge on February 14, 1995, as untimely. Kohn next began the district court action against MFD on April 4, 1995.

Meanwhile, as part of the 1994 settlement with the African American firefighters, the MFD modified the fire captain's exam, changing the written test to pass/fail and no longer including the written scores in the ranking. The MFD also established objective reviewing standards for the assessment center portion of the exam. It agreed to take affirmative steps to promote more minorities to the rank of captain.

At the end of 1994, the MFD gave notice that it would hold a new fire captain's exam in 1995. Thirty-six applicants, including 11 minorities, passed the 1995 written fire captain's exam. Unlike the 1991 exam, minorities were spread evenly throughout the eligibility list. The MFD made 32 promotions from the 1995 eligibility list and 11 of those were minorities. Kohn took the test and ranked number one on the eligibility list. The MFD promoted him to fire captain on August 8, 1995.

At the trial on Kohn's discrimination charge relating to the 1991 exam, each party produced an expert to discuss whether there was statistical evidence of discrimination. Kohn also presented evidence of his damages, including lost wages, emotional harm, and harm to his reputation.

Following a three-day trial on the merits, the district court found that the 1991 fire captain's exam had a statistically significant disparate impact on minorities. It determined that Kohn sustained wage losses of $35,079.97, emotional harm damage of $100,000, and damage to reputation of $100,000. It then trebled the compensatory damages for a final award of $705,239.91. The court amended several findings, but denied MFD's motion for a new trial. MFD appeals.

ISSUES

I. Did the Minneapolis Fire Department's continuing promotions from the 1991 eligibility list constitute continuing violations, so that

the statute of limitations for filing a disparate impact discrimination claim did not begin to run until the date of the final promotion from the list?

II. Did the district court use the proper analysis to conclude that the 1991 fire captain's examination had a statistically significant adverse impact on minority firefighters?

III. Does the record support the district court's award of damages?

ANALYSIS

An appellate court need not defer to the district court's decision on a purely legal question. A.J. Chromy Constr. Co. v. Commercial Mechanical Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977). Findings of fact will not be reversed unless clearly erroneous. Citizens State Bank of Hayfield v. Leth, 450 N.W.2d 923, 925 (Minn.App.1990).

I.

The first issue is whether the Minnesota Human Rights Act (MHRA) one-year statute of limitations bars Kohn's claim. As a preliminary matter, we must ascertain the date on which Kohn commenced this action for purposes of calculating its timeliness.

A person may file a discrimination charge with the district court, a local commission or the Commissioner of Human Rights. Minn.Stat. § 363.06, subd. 3 (1996). If the local commission dismisses the charge or fails to take certain actions within 45 days, the complainant may then bring a civil action. Minn.Stat. § 363.117 (1996).

MFD claims that the relevant date was April 4, 1995, when Kohn began his district court lawsuit. The statute, however, specifically authorizes a person to file a discrimination charge with a local commission first, as Kohn did on July 8, 1994. Thus, July 8, 1994, is the date on which Kohn commenced this action for purposes of the statute of limitations determination. Minn.Stat. § 363.06, subd. 6.

We then address the issue of whether Kohn commenced this action within the statutory period. This court must determine whether the last discriminatory act occurred when the MFD gave the test, or when it created the eligibility list, or whether continuing violations occurred each time it made a promotion from the list that did not include Kohn, the last of which occurred on July 14, 1993. If the former, the action fell outside of the one-year statute of limitations; if the latter, the action was timely.

A complainant must bring an unfair discriminatory action claim "within one year after the occurrence of the practice." Minn.Stat. § 363.06, subd. 3. But discriminatory acts that persist over a period of time may constitute continuing violations. Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn.1989). Continuing violations can prevent the expiration of the statute of limitations. Id. Even though a discriminatory act may have some continuing consequences,...