Torgerson v. City of Rochester

• Decision Date: 01 June 2011
• Docket Number: No. 09–1131.,09–1131.
• Citation: 643 F.3d 1031,112 Fair Empl.Prac.Cas. (BNA) 613
• Parties: David TORGERSON; Jami Mundell, Appellants,v.CITY OF ROCHESTER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

643 F.3d 1031

112 Fair Empl.Prac.Cas. (BNA) 613

94 Empl. Prac. Dec. P 44,199

David TORGERSON; Jami Mundell, Appellants,

v.CITY OF ROCHESTER, Appellee.

No. 09–1131.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 20, 2010.Filed: June 1, 2011.

Leslie Lyn Lienemann, argued, St. Paul, MN, for appellants.Patricia Ytzen Beety, argued, St. Paul, MN, for appellee.Before RILEY, Chief Judge, and WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.BENTON, Circuit Judge.

David Jaye Torgerson and Jami Kay Mundell challenge the City of Rochester, Minnesota's decision not to hire them as firefighters. Torgerson, a Native American, alleges disparate-treatment discrimination based on national origin. Mundell, a female, alleges disparate-treatment discrimination based on gender. They claim that the City violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e–17, and the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363A.01–.41 (2006). Torgerson also sues under 42 U.S.C. § 1981. The district court ¹ granted summary judgment to the City. A panel of this court reversed, 605 F.3d 584 (8th Cir.2010), but rehearing en banc was granted. This court now affirms.

I.

A. The Hiring Process

The City of Rochester hires firefighters using a state-statute-driven, civil-service process. In accordance with Minnesota Statute § 420.06, a Fire Civil Service Commission has “absolute control and supervision” over the employment of all officers in the Fire department. The Commission consists of three commissioners appointed by the City Council. Any Commission action requires an affirmative vote by at least two commissioners. Minnesota Statute § 420.07 directs the Commission to adopt rules to carry out its purposes. The rules must provide for “public competitive examinations to test the relative fitness of applicants.” Minn.Stat. § 420.07(2).

According to the Commission's Rules, the hiring process begins when the City posts a vacancy, and candidates apply. The City's Human Resources (HR) department first determines whether an applicant meets the application qualifications (citizenship, age, high-school diploma, basic firefighter courses, and Emergency Medical Technician (EMT) status). A candidate then faces a multi-phase process before appointment as a firefighter. Phase I of the process is a written “Standard Firefighter Entry–Level Examination” and “Employment Inventory/Customer Service Inventory,” which together count for 30 percent of a candidate's score. Those candidates with the 50 highest Phase I scores advance to Phase II, the physical-agility test. It also counts for 30 percent of a candidate's score. Candidates earn points in Phase II based on their times to complete a course requiring firefighter tasks. Taking more than six-and-one-half minutes is a failure, disqualifying the candidate. Those passing the Phase II physical-agility test advance to Phase III, an interview with a three-person panel. The panel interview counts for 40 percent of a candidate's score. As required by Minnesota Statute § 197.455, veterans receive additional points (non-disabled veterans get five points, and disabled veterans ten points). Thus, veterans can earn a potential total of 105 (or 110) points, while non-veterans, like Torgerson and Mundell, are capped at 100 points.

Both at their depositions and through counsel, Torgerson and Mundell do not challenge Phases I and II, or the veterans' points. Therefore, details are set out only as to Phase III: One interviewer is a Fire Commissioner, one represents the HR department, and one represents the Fire department. The HR department provides a set of interview questions. A private HR firm gives a class to the interviewers instructing them how to ask questions and what responses are considered good responses. The interviewers receive scoring criteria to use in rating a candidate's responses. The identical questions are asked in the same order by the same interviewer to each applicant. All three panel interviewers score a candidate's responses to each interview question on a scale of 1 to 10. The ten possible questions are also given to the candidates before the interview, by written memo from the private HR firm, along with a list of the qualities the questions relate to.

Based on the scoring from the three phases of the process and the veterans' points, each candidate is placed in rank order on an eligibility list. The Commission then votes whether to certify the eligibility list, which stands for two years. All candidates on the list are qualified for the position of firefighter, although those ranked higher are considered more qualified.

According to the Rules, when a vacancy is anticipated or occurs, the Fire Chief shall request that the Commission certify to the 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 Rules permit—but do not require—the certification of up to two eligible candidates from each “protected group” for which a disparity exists between the make-up of the Fire department and the City's affirmative action goals. Native Americans and women are considered protected groups. This expanded certification is in addition to the rule-of-three certification and is made in rank order.

By the rule of three, the Commission must 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 the Council appoints the highest-ranked candidate for each 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. However, before appointment, each candidate, including any protected-group candidate, must pass one final stage.

The certified candidates must pass a background check, an interview with the Fire Chief, and medical and psychological examinations. According to the Rules, if a candidate fails any of these, the Commission considers the next qualified candidate on the eligibility list. The City Council makes the final hiring decision, but according to Council Member Patrick Carr, the Council follows the Commission's recommendations. In the past, the City used an expanded certification to hire women and minority firefighters who were not ranked at the top of the eligibility list (and thus ordinarily have no chance of appointment). However, even if a protected-group applicant advances to the Fire Chief interview, the candidate retains his or her original rank on the eligibility list. Although all candidates on the eligibility list meet the qualifications for the firefighter position, those at the top of the list are recognized as more qualified than those at the bottom.

Ordinarily, the Fire Chief interview is used to determine if Phases I, II, and III missed something that is a reason not to hire a candidate. The Fire Chief changes the focus of the interview when interviewing lower-ranked candidates advanced by expanded certification. As to them, the interviews are used to see if the earlier phases missed something that is a reason to hire them instead of the highest-ranked candidates.

B. The Challenged Hirings

In the fall of 2005, the City sought to hire seven firefighters. Three of these positions were funded by a federal “Staffing for Adequate Fire and Emergency Response” (SAFER) grant. The grant outlines its purpose:

The purpose of the SAFER grants is to award grants 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.

The “Grantee Responsibilities” include: “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.”

The 2005 hiring process resulted in the certification of 48 candidates on the eligibility list.² The list included three protected-group candidates: Torgerson, Mundell, and another 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, he was a volunteer firefighter in Wisconsin. Torgerson had completed three years of college toward a degree in fire protection, including completion of Firefighter I and Fire Inspector I courses, for which he held certifications. He was certified as an “EMT–Basic” by the National Registry of Emergency Medical Technicians (NREMT) and the Minnesota Emergency Medical Services Regulatory Board. Mundell, at the time of her application, had several part-time jobs, including serving as a “public education assistant” for the City presenting fire-safety programs to second- and fourth-graders in Rochester (she was hired for the hourly position after e-mailing the Fire Chief inquiring about a volunteer position). She had an associate degree in business management and a diploma in intensive care paramedics from a local community college. She held a NREMT certificate, her EMT–Basic license, and licenses for completing the Firefighter I and Firefighter II courses.

Based on the written and physical-agility phases of the process (Phases I and II) and veterans' points, Torgerson ranked 45th, and Mundell 46th, of 48 candidates. Both advanced to...