Employment litigators know how difficult age-discrimination cases can be for plaintiffs. A decision this week by the 8th Circuit may have breathed new life into such claims for Minnesota plaintiffs.
LeRoy Hilde was 51 years old and a highly-respected Lieutenant on the City of Eveleth police force when the Chief’s job became vacant. Before the interviews, Hilde had the highest score of all four applicants. The interviewers, however, altered Hilde’s scores so that he was tied with a 43-year old candidate; the younger candidate was then offered the job. Later, the City admitted that one of the reasons it did not offer Hilde the job was because it was concerned that he might retire from the position too early.
Hilde, represented by Andrew Muller and John Klassen, brought suit against the City of Eveleth for age discrimination. After discovery, the city moved for summary judgment, which the lower court granted. On appeal to the 8th Circuit, the City argued that it was justified in considering Hilde’s eligibility for retirement because that factor is “wholly independent from” and not a “proxy for” age, as contemplated by the Supreme Court’s 1993 decision in Hazen Paper Co. v. Biggins. According to the City, Hilde’s retirement eligibility was evidence of his lack of commitment to the job, a legitimate and non-discriminatory factor.
The 8th Circuit disagreed with the City: “On the facts here, retirement eligibility is always correlated with age because it is dependent on the employee reaching 50; it cannot be divorced from age.” And even more pointedly: “To assume that Hilde was uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits.” In other words, retirement eligibility is a prohibited proxy for age.
The court’s decision contains a couple of other nuggets that should make plaintiffs’ attorneys happy. First, it reaffirmed that where an employer fails to follow its own policies, as Eveleth did when it changed Hilde’s score, that failure may support an inference of pretext when only the older candidate is affected. The City “deliberately manipulated Hilde’s scores to ensure the candidates would be ‘similarly qualified’, calling into question the objectivity of the entire hiring process.” Second, while courts are reluctant to create bright-line tests in such cases, the court held that an eight-year age differential between Hilde and the successful candidate was “substantial” in this case.
In sum, the 8th Circuit appears to have made it a little easier for plaintiffs to avoid the difficulties created by Hazen Paper, allowing them to survive summary judgment and have their day in court.