8-1700-6620-2
DHR File No. E20278
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS
State of Minnesota, by David Beaulieu,
Commissioner, Department of Human Rights,
Complainant, EINDINGS OF FACT,
CONCLUSIONS AND
VS. ORDER
City of St. Paul, Minnesota,
Respondent.
The referenced matter was heard in Minneapolis, Minnesota, on September 9,
1992. Richard L. Varco, Jr., Assistant Attorney General, 1100 Bremer Tower,
7th Place and Minnesota Street, St. Paul, Minnesota 55101, appeared on behalf
of Complainant. Paul F. McCloskey, Assistant City Attorney, City of St. Paul,
800 Landmark Towers, 345 St. Peter Street, St. Paul, Minnesota 55102, appeared
on behalf of Respondent. The record closed on October 28, 1992, when the last
authorized brief was filed.
NOTICE
Pursuant to Minn. Stat. 363.071 , subds. 2 and 3, this Order is the
final decision in this case. Under Minn. Stat. 363.072, the Commissioner of
the Department of Human Rights or any other person aggrieved by this decision
may seek judicial review pursuant to Minn. Stat. 14.63 through 14.69.
STATEMENT OF ISSUES
The issues in this case are as follows:
(1) Did a City supervisor deny Roland Geehan a promotion due to Geehan's
age?
(2) If Geehan was the victim of illegal age discrimination, is the
Complainant entitled to the relief requested in its Complaint?
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS
I Roland J. Geehan, a life-long mechanic, was born September 9, 1929.
Geehan was first employed as a mechanic about 1952 when he began working as an
apprentice mechanic for an automobile dealer in St. Paul. The apprenticeship
program, which lasted four years, involved full-time work for the dealer
coupled with evening classes. Geehan completed the apprenticeship program and
became an automobile mechanic and a member of the Machinists Union. He worked
for the dealer as a mechanic for approximately 20 years.
2. In 1961, Geehan began working as a part-time instructor at the St.
Paul Area Vocational/Technical Institute. He taught evening classes in
automobile air-conditioning and automobile transmissions. He worked about
eight hours weekly for approximately 21 years. All the while, he maintained
regular, full-time employment as a mechanic.
3. In December 1972, Geehan was hired by the City to work as a mechanic
at the City's municipal garage. He worked for the City as a mechanic until
January 31, 1992, when he retired due, in part, to health problems. He was 62
years old at the time of his retirement.
4. Geehan, like other mechanics, worked on every type of vehicle and
equipment the City uses. The equipment ranged from small engines to front-end
loaders. Work consisted of brake jobs, tune-ups, and engine and transmission
repair.
5. Shortly after Geehan was employed by the City, LaRon Mundahl, Sr.
became the municipal garage supervisor. In recent years, approximately 97
employees have worked at the garage. Most of them are truck drivers (65-70),
some are office workers, and the remainder (8-12) are mechanics. At all times
pertinent to this case, Geehan's immediate supervisor was Allen Schmidt, the
shop foreman.
6. The City annually evaluates each mechanic's performance as
satisfactory or unsatisfactory. Geehan always had satisfactory evaluations
and was never criticized by Mundahl or Schmidt regarding any aspect of his job
performance.
7. Prior to 1987, one mechanic in the garage was employed as a lead
vehicle mechanic. Among other things, the lead mechanic was responsible for
performing the shop foreman's duties when the foreman was absent from work.
The lead mechanic was paid a higher hourly wage than other mechanics for the
additional duties performed. The lead mechanic position was vacant after 1987
and mechanics in the shop were anxious to have it filled. Past practice had
been to appoint a senior mechanic to the job.
8. At a shop meeting of mechanics late in 1988, Mundahl announced that
he had appointed Jeff Lemmons as temporary lead mechanic and that the position
would be filled permanently after testing by the City. Because Lemmons was
the youngest mechanic employed by the City, questions were raised about his
appointment. Mundahl told the group that he had authority to make the
appointment without previously posting the job. Mundahl also said that the
City would benefit more by having a younger person in the position who would
be with the City longer.
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9. Earlier, Mundahl had expressed a similar preference for younger
employees. In the spring, he assembled shop mechanics to discuss the
acquisition of an engine analyzer. Mundahl was considering the acquisition of
an analyzer so that engine problems could be more easily diagnosed. During
the meeting, Mundahl said that only younger mechanics would be trained to use
the analyzer. He told them that mechanics over age 45 were not trainable and
that the City would obtain greater benefits by training the younger mechanics
(i.e., those hired in 1985 or 1986) because they would be working for the City
longer. Mundahl said that younger mechanics had more recent experience and
training in the use of computerized vehicles and diagnostic equipment.
However, he had no specific knowledge or information about the younger
mechanics' training and experience. The information he had was that they had
no such experience.
10. Mundahl's remarks about training irritated a number of older
mechanics who felt that younger employees were already being favored in the
assignment of overtime work. Lemmons' appointment as temporary lead mechanic
strengthened the view of some of the older employees that they were being put
out to pasture. One of the mechanics told Mundahl that his proposed training
restrictions constituted age discrimination. Mundahl replied, in essence,
that they could call it whatever they wanted, but he had the authority to make
training decisions.
II. In April 1989, Geehan applied for the lead mechanic position. He
felt it was his last chance for a promotion and was attracted by the higher
hourly wage the position paid. Applicants for the lead mechanic position were
given a written examination by the City's Personnel Department. Following the
Personnel Department's ranking of the applicants, a list of the five highest
ranking candidates was certified to Mundahl. Geehan was the highest ranking
candidate on the list. Immediately below him were two employees in the
Community Services Department. They were followed by Robert Erickson, ranked
number four, and Richard Stadler. Erickson and Stadler were both mechanics in
the municipal garage. Erickson, like Geehan, had always received satisfactory
ratings on his annual performance ratings. Lemmons took the test for lead
mechanic but his score was too low to qualify for certification.
12. The five eligible candidates were interviewed by Mundahl, Allen
Schmidt, and Jim Lewis. Schmidt was the shop foreman and Geehan's immediate
supervisor. Lewis was a vehicle dispatcher who assigned drivers to vehicles.
Lewis did not work directly with mechanics at the garage, but all the
interviewers had worked with Geehan and Erickson for about 14 years. Mundahl
believed that someone at the garage should get the appointment, and although
two employees from the Community Services Department were interviewed, they
were never seriously considered for the lead mechanic position.
13. Mundahl was authorized to make a selection with or without an
interview. He was not required to use a panel to interview eligible
candidates for the lead mechanic position. He decided, however, to use a
panel so that no one in the garage could say that he had made the decision
alone. However, Mundahl typically used a panel to make hiring decisions as
recommended by the personnel department.
14. The personnel department has guidelines for selection interviews.
The guidelines certain a list of topics interviewers should avoid. Age is one
of them. Ex. 8(B).
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15. The guidelines recommend that the hiring authority define the major
job duties of the position to be filled and the necessary knowledge, skills
and abilities the appointee should have. The guidelines state that uniform
questions relating to the applicant's qualifications should be developed and
that the most effective interviews are job related, standardized, and
objective. Ex. 8(B).
16. The panel developed six questions that each applicant was required to
answer:
1. You are the leadworker. Nobody wants to work for you. What do
you do?
2. Shop productivity needs to improve. We will be getting estimates
from outside shops. What would you do?
3. How would you make work assignments?
4. Can you leave the working side to become part of management?
5. Why do you want the job?
17. Mechanics in the shop were concerned about the lead mechanic
appointment. Many of them hoped Geehan would be appointed. Before the
interviews were held, two of them told Mundahl that they could work well with
Geehan. Mundahl told one of them he would be a brain surgeon before Geehan
would be the lead mechanic.
18. The five applicants were interviewed on April 12, 1989. At that
time, Geehan was 59, Stadler was 43, and Erickson was 40.
19. After each interview, the panel members completed their rankings and
the three rankings were added together. Each panel member assigned one point
for first choice, two for second and three for third. The candidate with the
lowest combined score was the highest ranked. Erickson, who received the
lowest combined score, was ranked number one by the panel and selected as the
lead vehicle mechanic. Both Mundahl and Lewis ranked him number one.
Geehan's immediate supervisor had ranked Geehan number one. All three panel
members ranked Stadler third. Mundahl ranked Erickson over Geehan because
Erickson was younger.
20. Geehan was extremely disappointed when he was not appointed as the
lead mechanic because he had received the highest overall ranking on the
written examination. He felt that he deserved the job and believed that the
only reason he was not appointed was his advanced age.
21. On March 7, 1990, Geehan filed a charge of age discrimination with
the Minnesota Department of Human Rights ("Department") alleging that the
City's failure to promote him to the position of lead vehicle mechanic
resulted from age discrimination. The charge was served on the City on
March 14, 1990. On September 10, 1990, following the Department's
investigation of the charge, a former Commissioner of the Department notified
the City that he found no probable cause to believe that Geehan's failure to
be promoted resulted from age discrimination. Geehan obtained counsel and an
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appeal from that decision was filed. A subsequent Commissioner reversed the
initial no-probable-cause finding and notified the City that probable cause
existed to credit Geehan's charge of age discrimination. Following
unsuccessful attempts to conciliate the matter, a Complaint was issued by the
current Commissioner charging the City with age discrimination in violation of
the Minnesota Human Rights Act.
22. Erickson was appointed to the position of lead mechanic on or about
May 5, 1989. Upon his appointment, he received $.28 per hour more than
Geehan was paid when Erickson worked as lead mechanic. Between May 5, 1989
and January 31, 1992, when Geehan retired, Erickson was paid $.28 hourly more
than Geehan for the hours indicated below:
Year Hours Additional Wages at $.28
1989 253 $ 70.84
1990 2,080 582.40
1991 2,080 582.40
1992 280 78.40
Total $1,314.04
23. During the period from May 5, 1989 through January 31, 1992,
Erickson's annual overtime earnings exceeded Geehan's by the following amounts:
Year Amount
1989 $ 0
1990 50.28
1991 809.74
1992 25.30
Total $885.32
24. After Geehan filed his discrimination charge with the Department, he
retained counsel with respect to his charge. Subsequently, through August 20,
1992, he was billed $1800 in hourly fees for time spent by his counsel in the
matter. In addition, he was billed $34.29 for costs counsel incurred. His
charged $525 to attend Mundahl's deposition by the Complainant. Ex. 21.
25. Before Geehan filed his charge, Mundahl had never been charged with
discrimination or any violations of the Minnesota Human Rights Act. However,
on March 8, 1990 the St. Paul Civil Service Commission found that Geehan had
committed a "most amazing series of abuses of the most basic tenants of the
merit selection process and the Civil Service System" in creating a special
mid-level management position for his son. Ex. 22.
26. Mundahl has hired and promoted older workers. In 1976, when he was
38, Mundahl hired a 52-year-old woman, B.P., as a clerk-typist. Seven years
later, he promoted her to a clerk-typist II. In 1983 Mundahl upgraded the
position of 61-year-old office worker, D.S., because the man's duties did not
match his title. Two years later, Mundahl promoted the man to office
manager. When B.P. was hired, and B.P. and D.S. were promoted, Mundahl was
not familiar with the other applicants, if any, and the record does not
reflect the other applicants' ages.
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27. For many years, retired truck drivers have been used sporadically to
drive trucks for the City during snow emergencies. The use of retired drivers
to help out in snow emergencies was Mundahl's idea. The retired drivers are
frequently over age 58.
Based on the foregoing Findings of Fact and for the reasons set forth in
the attached Memorandum, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge has jurisdiction herein and the
authority to take the action ordered pursuant to Minn. Stat. 363.071 and
14.50 (1990).
2. The Complaint and the Notice of Hearing in this case were properly
served and all relevant substantive and procedural requirements of law and
rule have been fulfilled by the Department.
3. The Respondent is an employer for purposes of Minn. Stat. 363.01,
subd. 15 (1990).
4. Under the Minnesota Human Rights Act, it is an unfair employment
practice for an employer to discriminate against a person based upon age with
respect to hiring, tenure, compensation, terms, upgrading, conditions,
facilities, or privileges of employment. Minn. Stat. 363.03, subd. 1(2)(c)
(1989).
5. The Complainant has the burden of proof to establish a prima facie
case of discrimination. Once a prima facie case of age discrimination is
established, the Respondent must articulate a legitimate nondiscriminatory
reason for the employment action. If the employer articulates a
nondiscriminatory reason for its action, the burden reverts to the employee to
demonstrate that the employer's reasons are a pretext for discrimination or
unworthy of belief. The burden of proof remains, at all times, on the
Complainant to establish that the Respondent engaged in a prohibited
discriminatory act.
6. The Complainant established a prima facie showing that Geehan was
denied a promotion as lead mechanic due to his age. The employer failed to
articulate a legitimate nondiscriminatory reason for its action, and the
Complainant showed that the reasons given were a mere pretext for illegal age
discrimination and established, by a preponderance of the evidence, that
Geehan was the victim of age discrimination when denied a promotion to lead
mechanic.
7. The Complainant established that Respondent violated Minn. Stat.
363.03, subd. 1(2)(c) but did not establish a violation of 363.03, subd.
1(2)(b) (1989).
8. Respondent failed to show that Erickson would have been appointed by
the panel if no discrimination had occurred.
9. Because Geehan was the victim of age discrimination, he is entitled
to recover $2,199.36, being the wages he would have earned if promoted.
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10. Due to the small amount of Geehan's wage loss, his compensatory
damages should be trebled under Minn. Stat. 363.071, subd. 2 (1988).
11. For the mental anguish Geehan experienced as a result of his
discriminatory treatment he is entitled to an award of $1,000.00
12. The Respondent should pay a civil penalty to the Complainant in the
amount of $1,500.
13. The Respondent should pay $1,309.29 for the attorney fees and costs
Geehan incurred.
14. The Respondent should not pay any punitive damages because its
statutory violation was not established with clear and convincing evidence.
15. The Respondent should be ordered to direct LaRon Mundahl, Sr., to
cease and desist from discriminating against municipal garage employees on the
basis of their age.
Based on the foregoing Conclusions, IT IS HEREBY ORDERED:
1. Respondent shall order LaRon Mundahl, Sr., to cease and desist from
discriminating against municipal garage employees on the basis of their age in
making promotional decisions.
2. Respondent shall forthwith pay Roland Geehan $6,598 in trebled
compensatory damages, $1,000.00 for mental anguish and suffering and $1,309.29
for attorneys fees and costs.
3. Respondent shall forthwith pay a civil penalty of $1,500.00 to the
Commissioner of Human Rights for deposit to the general fund.
Dated: November 23, 1992.
JON L. LUNDE
Administrative Law Judge
Reported: 3 tapes
MEMORANDUM
I.
Complainant argues that the City denied Geehan's application for
promotion because of his age in violation of Minn. Stat. 363.03, subd.
1(2)(b) and (c) (1988). Except when age is a bona fide occupational
qualification, the statute states that it is an unfair employment practice:
(2) For an employer, because of . . . age,
(a) To refuse to hire or to maintain a system of employment
which unreasonably excludes a person seeking employment; or
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(b) To discharge an employee; or
(c) To discriminate against a person with respect to hiring,
tenure, compensation, terms, upgrading, conditions, facilities,
or privileges of employment.
The statute only applies to persons age 18 or older. Minn. Stat.
363.01, subd. 28 (1988) and 645.451 (1988).
In analyzing evidence in a disparate treatment case based on
circumstantial evidence, the three-step process articulated in McDonpell
Douglas Corp. v, Green, 411 U.S. 792 (1973) must be followed. See, e.g. Danz
v. Jones, 263 N.W.2d 395, 399-400 (Minn. 1978). Under Mcponnell Douglas, the
complainant must make a prima facie showing that an employer's action was
illegally discriminatory. The prima facie showing consists of evidence which,
if unexplained, raises an inference of discrimination. If a prima facie
showing is made, the burden of producing evidence shifts to the employer, who
must articulate a legitimate nondiscriminatory reason for the challenged
action. If the employer meets this burden of production, the complainant must
show that the employer's articulated reasons for the action are a mere pretext
for discrimination or unworthy of belief.
In McDonnell Douglas, the court said that a prima facie case of a
discriminatory refusal to hire consists of four elements. The complainant
must show that the charging party is a protected class member, that the
charging party applied and was qualified for a job the employer was seeking
applicants to fill, that in spite of the charging party's qualifications the
charging party was rejected, and after the employer rejected the charging
party, the position remained open and the employer continued to seek
applicants having the charging party's qualifications. The most common
approach used by the courts in applying the McDonnell Douglas elements to
promotion cases is to simply substitute the word "promotion" for the word
"Job". John v. C.A.R.E.. Inc., 25 F.E.P. 517 (S.D.N.Y. 1980); Bundy v.
Jackson, 641 F.2d 934, 24 F.E.P.1155 (D.C. Cir. 1981). See, generally, 2
A. Larson and L. Larson, Employment Discrimination 50.22 at 10-15, 10-16.
When an employer selects from a pool of applicants, the fourth
McDonnell-Douqlas element cannot be established because one person is promoted
simultaneously with the charging party's rejection. See, generally, 2,
A. Larson and L. Larson, Employment Discrimination 50.31 (f) at 10-36 to
10-38. Most courts have dealt with this problem by modifying the fourth
element of the prima facie case to require a showing that the charging party's
rejection was made "under circumstances which give rise to an inference of
unlawful discrimination." Texas Dep't. of Community Affairs v. Burdine, 450
U.S. 248, 25 F.E.P. 113, 115 (1981). See, also, Lucas v. Dole, 835 F.2d 532,
45 F.E.P. 971 (4th Cir. 1987).
Complainant argues that the elements of a prima facie showing of age
discrimination are:
(1) That the employee was a member of a protected class,
(2) That the employee was qualified for the position held,
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(3) That the employee was not hired, and
(4) That the employer assigned a nonmember of the protected class to
do the same work.
Complainant's formulation is based on the decision in
Corp, 431 N.W.2d 879, 882 (Minn. Ct. App. 1988), a discharge case. The
fourth element of the prima facie test proposed by Complainant is
inappropriate. Under the Minnesota Human Rights Act ("HRA"), all persons over
the age of majority are protected class members. Under Complainant's
formulation, an inference of discrimination would arise only if a person over
age 18 was rejected and a person under age 18 was hired. Clearly, limiting
the prohibition against age discrimination as the Complainant's proposal does
would not effectuate the remedial purposes of the Human Rights Act and would
offer little protection to most workers. In this case, for example, the
fourth element proposed by the Complainant was not established.
In Bruss v. Toro Co., 427 N.W.2d 17, 20 (Minn. Ct. App. 1988), the court
held, in a case involving a discriminatory discharge based on age, that the
fourth element of a prima facie case was met where a man more than 20 years
younger than the charging party was hired to perform work the charging party
had been doing and the work performed by the other man was identical to the
work previously done by the charging party. Therefore, under Bruss, the
fourth element does not require a showing that a nonmember of the protected
class was hired instead of the older worker.
As a general rule, the Administrative Law Judge is persuaded that the
fourth element of a prima facie case involving promotions can be met if the
complainant shows that a charging party was not hired under circumstances
giving rise to an inference of discrimination. Generally speaking, it is not
enough to show merely that the person hired was younger. Feges v. PerKins
Restaurants, Inc., 465 N.W.2d 75 (Minn. Ct. App. 1991). In Feges, the court
stated that the replacement of an older person by a younger one is one element
of a prima facie case of age discrimination but does not raise an inference of
discrimination unless supported by "other relevant evidence". Id. at 80.
Other courts agree.
In Autry v. North Carolina Dept. of Human Resources, 820 F.2d 1384, 44
F.E.P. 169 (4th Cir. 1987), the court discussed the fourth element in
connection with a claim of race discrimination. The court stated that the
charging party would be required to show that there was a connection between
her race and her failure to be promoted. That is, that she was not promoted
"because of" her race, and not merely that she was a member of a racial
minority and was not promoted. In another case, the charging party was not
hired in favor of a younger candidate for an administrative position in a
government agency where the charging party had successfully worked for six
years. The court held, however, that the charging party failed to establish a
prima facie case because he presented no evidence that his age was a factor in
his not being selected. Sales v. Department of Justice, 549 F. Supp. 1176, 30
F.E.P. 952 (D.D.C. 1982), aff'd. 717 F.2d 1480 (D.C. Cir. 1983). Also, in
DeFries v. Haarhues, 488 F Supp. 1037, 25 F.E.P. 393 (C.D. Ill. 1980) the
court held, in an age discrimination case involving the failure to receive a
promotion, that the charging party has to demonstrate that age was a
determining factor in the defendant's failure to promote her.
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in some cases, the mere fact that a substantially younger person is
appointed might be sufficient to satisfy the fourth element.
Co,, supra; Reed v. Signode Corp. 652 F. Supp. 129, 48 F.E.P. 490 (D. Conn.
1986). This is especially true when performance of the job involved in the
case requires little, if any, discretion or Judgment. When the job requires a
wider range of attributes, and an employer accepts a number of applications
from qualified individuals and selects one who it believes would best fill the
position, the rejection of other applicants, even though some of them may be
members of a protected class, will not be sufficient to cause the burden to
shift to the employer. Kaster v. Independent School_District No. 625, 284
N.W.2d 362, 364-65 (Minn. 1979).
Based on the foregoing, the Administrative Law Judge is persuaded that
when an employer selects one candidate from a pool of applicants, the fourth
prong of a prima facie case requires an unsuccessful applicant challenging the
hiring as discriminatory to show circumstances giving rise to an inference of
discrimination. Daines v. City of Mankato, 754 F. Supp. 681, 697 (D. Minn.
1979). It may be possible, in some cases, to meet that burden merely by
showing a significant difference in ages. It might also be met by showing
that the person hired was less qualified, that the employer had a
discriminatory animus, or other circumstances raising an inference of
discrimination.
The Complainant established all the elements of a prima facie case of age
discrimination. It showed that Geehan is a protected class member and
qualified for the position of lead mechanic. Mundahl admitted that Geehan was
qualified, and Geehan's number one ranking after the written examination,
coupled with his extensive experience teaching and working as a mechanic,
clearly establish his qualifications. The record also shows that Geehan was
not hired and that a significantly younger man was hired instead. It does not
appear that the lead mechanic position would have been performed equally well
by anyone possessing experience as a mechanic because the lead mechanic was
required to assign work and fill in for the shop foreman in the latter's
absence. An ability to supervise and oversee employees was needed. Hence, it
is doubtful whether the age disparity between Geehan and Erickson, standing
alone, is sufficient to establish the fourth element of a prima facie case
However, there is other evidence in the record which does raise an inference
of discrimination. Prior to Geehan's rejection, Mundahl made comments
evincing a bias toward the training and promotion of older workers. Mundahl
indicated that older workers were not trainable and that it was not
cost-effective to train or promote them. Although there is no evidence of a
bias toward older workers on the part of the other two employees who
interviewed candidates for the lead mechanic position, Mundahl's statements
are sufficient to raise an inference of discrimination.
Mundahl was the only panel member called as a witness by the parties. The
City argued that Complainant's failure to call Jim Lewis as a witness is fatal
to its case. Lewis, like Mundahl, ranked Erickson first. The Administrative
Law Judge is not persuaded by the City's argument.
Special problems can arise when committees and panels make hiring
decisions because each member may have different reasons for voting one way or
the other. See, e.g. Banerjee v. Board of Trusties of Smith College, 495
F. Supp. 1148, 23 F.E.P. 131 (D. Mass. 1980), aff'd, 648 F.2d 61 (1st Cir.),
cert. denied, 454 U.S. 1098 (1981). The courts have reviewed cases involving
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committee selections, but no cases were cited or found which discuss whether
the components of the traditional three-part McDonnell Douglas analysis change
when committees are involved. The Minnesota Supreme Court has dealt with
cases involving the use of committee selection processees, but did not discuss
the issue. Kaster v. Independent School District-No 625, 284 N.W.2d 362
(Minn. 1979). See also, Comm'n on Human-Relations v. Wash. Co. Community, 476
A.2d 222 (Md. App. 1984).
Sometimes the use of a committee to make hiring decisions might require
testimony of more than one committee member. In this case, however, the
Administrative Law Judge is not persuaded that either party's failure to
provide testimony from all panel members is of critical significance. Because
Mundahl's ranking was essential to Erickson's selection, Complainant can
establish a prima facie showing of discrimination based on Mundahl's asserted
bias. When a prima facie, case is based on one panel member's alleged bias,
the employer is only required to articulate a legitimate nondiscriminatory
reason for that panel member's ranking. Complainant can then show pretext
It is presumed that other panel members were unbiased. In this case, it must
be presumed that Jim Lewis was not biased against Geehan anymore than Schmidt
was biased against Erickson. It is assumed that if Mundahl was biased,
however, Geehan would have been hired because Schmidt had ranked him first and
Mundahl had ranked him second.
II.
once a prima facie case is established, the Respondent must articulate a
legitimate nondiscriminatory reason for its action. It need not prove that it
was actually motivated by the proffered reasons but
[Tlhe sufficiency of the employer's evidence nevertheless
should be evaluated by the extent to which it "serves
simultaneously to meet the plaintiff's prima facie case
by presenting a legitimate reason for the action and to
frame the factual issue with sufficient clarity so that
the plaintiff will have a.full and fair opportunity to
demonstrate pretext."
State v Scientific Computers. Inc., 393 N.W.2d 200, 203 (Minn. Ct. App.
1986), citing Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).
Ur in , Supra, 450 U.S. at 254-55. Although the employer's burden on
rebuttal is a light one, subjective and vague criteria may be insufficient
reasons for an employer's failure to hire an individual, because a complainant
has no objective criteria to point to in order to show pretext. State_v.
Scientific Computers, Inc., supra, 393 N.W.2d at 203. The employer's burden
cannot be met by merely asserting that the best qualified person was hired,
Impact v. Firestone, 52 F.E.P. 71, 74-75 (llth Cir. 1990), or by stating that
the employment decision was based on a "gut feeling." Eccleston v. Secretary
of Navy, 700 F. Supp. 67, 68 (D.D.C. 1988).
Mundahl testified that the applicants for lead mechanic were all asked
the same questions and were evaluated on the basis of the answers to the
questions and the applicants' job performance. According to Mundahl, he rated
Erickson higher than Geehan because he felt that Erickson was a "better
producer, a better worker." Mundahl did not explain how Erickson was a better
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worker or a better producer or how those qualities were related to the vacant
position. In Impact v. Firestone, supra, the court reviewed an employer's
rebuttal burden under Burdine and concluded that an employer's assertion that
the individual selected for a position was "better qualified" was not a
sufficient rebuttal because no witness testified to the particular
qualification that was used by the employer to make its employment decision.
In the court's view, merely stating that the best qualified person was hired
left no opportunity for the employee to rebut the given reason as a pretext.
Id. at 75. In Burdine, supra, 450 U.S. at 256, the court held that an
employer's explanation must be "clear and reasonably specific" and that the
employer has an incentive to persuade the trier of fact that the employment
decision was lawful.
Mundahl's explanation for preferring Erickson over Geehan was not clear
and reasonably specific. Mundahl said only that Erickson was a better worker,
a better performer. His subjective and conclusionary reasons are as vague as
saying that Erickson is more qualified. Such generalities were rejected in
Impact. Qualifications can relate to a worker's knowledge, skills or
abilities. The factors making one person a better worker or producer may also
relate to the worker's knoledge, skills, and abilities, the quality and
quantity of the work produced, or personal characteristics such as the
worker's attitude, punctuality, or interpersonal skills. The record does not
show what Mundahl meant when he said he felt that Erickson was a better
worker, a better producer. His conclusionary and subjective words were not
clear and reasonably specific because they did not afford the Complainant a
full and fair opportunity to demonstrate that Mundahl's conclusions were
pretextual. The City's failure to articulate a legitimate nondiscriminatory
reason for Erickson's selection gives rise to an inference of discrimination,
but Complainant still has the burden of proving by a preponderance of the
evidence that he was discriminated against on the basis of his age. Eccleston
v. Secretary of the Navy, 700 F. Supp. 67, 68 (D.D.C. 1988).
III.
Even if Mundahl's testimony was sufficient to meet the City's burden of
explaining his selection, the Administrative Law Judge is persuaded that
Mundahl's explanation was not worthy of credence and that a discriminatory
reason most likely motivated his ranking.
The Administrative Law Judge is persuaded, for a variety of reasons, that
Mundahl's subjective and conclusional reasons for allegedly preferring
Erickson were a pretext for discrimination. The most significant factors
evincing pretext are Mundahl's decision to temporarily appoint the youngest
man in the shop to the lead mechanic position, his contemporaneous statement
that it was more beneficial for the City to appoint a younger mechanic, and
his testimony that the temporary appointee was not the most qualified.
There is no evidence in the record that it was necessary to appoint a
temporary lead mechanic before a permanent selection was made. The position
had already been vacant for approximately two years. If a necessity existed,
it is unlikely that Mundahl would have appointed one of the experienced
mechanics in the garage. It is even less likely that he would appoint a
person he did not believe was as competent as Erickson. Mundahl testified
that he would not have hired Lemmons over Erickson as permanent lead
mechanic. If Mundahl truly believed Erickson was more qualified, he would not
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have appointed Lemmons in the first place. Mundahl's testimony that he would
have appointed Erickson over Lemmons was not credible and persuades the
Administrative Law Judge that Mundahl's testimony generally should not be
credited. The record shows that Mundahl wanted the youngest man in the shop
to become lead mechanic and temporarily appointed Lemmons so that he would
gain some hands-on experience which could help him pass the upcoming test and
be certified for permanent appointment. When Lemmons was unable to make the
list, Mundahl hired the next youngest mechanic in the shop.
Mundahl had only a limited opportunity to observe the work garage
mechanics perform. For that reason, he admitted that he did not alter the
annual reviews of the mechanics work' but left that review to the shop
foreman, who he admitted was in the best position to evaluate performance.
However, Mundahl did not defer to the shop foreman opinion that Geehan was the
best candidate and, at the hearing, suggested that the foreman was not
competent. Mundahl's testimony on this point was illogical and further
impaired has credibility.
Mundahl did not present any objective or subjective description of the
ways in which he believed Erickson was a preferable candidate. Erickson's and
Geehan's annual evaluations are virtually indistinguishable and Geehan had the
highest ranking on the Personnel Department's written test. Given Geehan's
teaching experience, his longer experience working as a mechanic, and his top
ranking on the written test, Mundahl must have known why he felt Erickson was
a better worker. However, he did not explain. The Administrative Law Judge
must assume that he had no explanation because he simply wanted to hire a
younger worker.
Mundahl clearly favored younger employees. When the purchase of new
equipment to diagnose engine problems was being discussed in the spring of
1988, Mundahl stated that people over 45 were not trainable and that the City
would benefit more by training younger employees. At the hearing, Mundahl
stated that he believed younger employees should be trained because they had
more recent training in the use of diagnostic equipment. When cross-examined,
however, it was clear that none of the younger people had more recent training
in the use of such equipment, and some of them had no such training at all.
Based on Mundahl's ageist comments, his belief that the promotion and
training of older mechanics was not in the City's best interest, his temporary
appointment of Lemmons, and his failure to explain why Erickson was selected,
it is concluded that Geehan was not promoted due to his age and that Geehan
would have been promoted if he had been younger. The City's argument that
Geehan had no bias toward older workers was not persuasive. The evidence it
presented to support it argument was inconclusive and insubstantial.
The Respondent also attempted to characterize Geehan's charge as an
example of an underlying labor dispute between the City and garage mechanics
over seniority issues. There is a relationship between age and seniority.
However, the Administrative Law Judge is not persuaded that those employees
who testified about Mundahl's preference for training and advancing younger
employees was fabricated simply because of on-going seniority issues that
arise during collective bargaining.
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IV.
When a discriminatory practice is established, a broad array of remedies
are authorized under Minn. Stat. 363.071, subd. 2. Among other things, the
offending employer may be ordered to cease and desist from the unfair practice
found to exist. The employer also may be ordered to pay a civil penalty up to
three times the compensatory damages sustained, damages for mental anguish and
suffering, punitive damages in an amount not more than $8,500, and reasonable
attorney's fees.
The City should be ordered to pay Geehan the actual wage loss he
sustained due to Mundahl's discriminatory conduct. In addition, the City
should pay three times the wage loss actually sustained. Trebling the
compensatory damages payable to Geehan is appropriate given the small size of
the wage loss sustained, the absence of punitive damages, and the need for
employers to understand that workers on the verge of retirement are not fair
game for discriminatory treatment. Under these circumstances, however, no
interest on lost wages should be ordered.
In addition to treble compensatory damages, the City must pay a civil
penalty to the State. Under 363.071, subd. 2, the amount of the civil
penalty to be paid must take into account the seriousness and extent of the
violation established, the public harm occasioned by the violation, the
intentional or unintentional nature of the violation, and the financial
resources of the Respondent. Discrimination is always serious, but the
violation established in this case was of the least serious nature and, while
intentional, did not result in any great public harm other than the expenses
incurred by the Department in obtaining a remedy. Based on all the
circumstances, including the Respondent's financial resources, it is concluded
that the Respondent should pay a civil penalty to the State in the amount of
$1,500. The civil penalty should be adjusted downward somewhat because the
City shall also be ordered to pay a large portion of the attorney's fees
Geehan incurred.
Minn. Stat. 363.071, subd. 2 authorizes an award of attorney's fees
Geehan incurred attorneys fees in the amount of $1,834.29. All but $525 of
the fees should be reimbursed by the City. Complainant failed to show that it
was necessary for Geehan's counsel to attend Mundahl's deposition. At that
time, Geehan's charge was being ably litigated by the Attorney General and the
Administrative Law Judge is not persuaded that Geehan's counsel was a
necessary participant.
In addition to treble compensatory damages for the wage loss he
sustained, Geehan should be awarded $1,000 for mental anguish and suffering.
He testified that he was extremely disappointed when he was not promoted and
that it disrupted his sleep. However, the mental anguish he suffered was not
severe and did not require medical consultation or treatment. Furthermore,
the impact of his failure to get a promotion did not have long term
consequences given Geehan's deteriorating health and early retirement.
Punitive damages can be awarded in human rights cases under the criteria
in Minn. Stat. 549.20 (1988). Under the statute punitive damages must be
allowed only upon clear and convincing evidence showing deliberate disregard
for the rights or safety of others. Administrative Law Judge is not persuaded
that clear and convincing evidence exists in this case. Therefore, no
punitive damages have been awarded.
JLL