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Duluth News Tribune, Wednesday, January 08, 2014

imgresJudge dismisses Eveleth cop’s age bias lawsuit
TOM OLSEN tolsen@duluthnews.com 

   A federal judge has thrown out a lawsuit filed by an Eveleth police lieutenant who claimed that he was discriminated against based on his age.

   The case is not yet over, though, as attorneys for Lt. LeRoy Hilde prepare an appeal to the 8th U.S. Circuit Court of Appeals.

   “Our position is that the judge inappropriately took the case out of the hands of ajury, and we were surprised by it,” said Minneapolis employment law attorney Andrew Muller.

   Hilde, who remains the city’s second-ranking officer, sued the city in November 2012, claiming that he was passed over in the search for a new police chief based on his age. Hilde, 51 at the time, was at least eight years older than the three other candidates who were interviewed. He sued the city under the Age Discrimination in Employment Act and the Minnesota Human Rights Act.

   U.S. District Judge Richard Kyle granted the city’s request for summary judgment on Dec. 4, dismissing the suit with prejudice, meaning Hilde will not be able to bring another lawsuit on the same claim.

   Kyle wrote in his opinion that the case is “devoid of evidence that the City’s conduct was motivated by Hilde’s age.”   “Hiring a younger worker may well suggest, in appropriate circumstances, that age was a factor in the employer’s decision,” Kyle wrote. “But context is everything, and in the Court’s view, often it will not suffice for a plaintiff simply to point to the chosen candidate and exclaim, ‘He’s younger!’ ”

   Hilde says in the suit that he was the most-qualified candidate. The lawsuit claims that the police commission made reference to wanting to hire someone who “will be here for the long term” and “not wanting to do this again anytime soon.”

   But Kyle ruled that employers are within their rights to consider possible retirement in choosing a candidate.

   “It is not improper for an employer to consider a candidate’s eligibility for retirement when making a hiring decision,” Kyle wrote. “Indeed, in a position as important as Chief of Police, it would make sense for the Commission to ensure that its selected candidate would remain for some time.”

   Pat Beety, a League of Minnesota Cities attorney representing the city of Eveleth, said she was pleased with Kyle’s dismissal of the suit, but said she was not surprised.

   “We felt confident when we submitted the motion for dismissal,” she said. “I think it’s fair to say that we’re in a position for the dismissal to be confirmed at the 8th Circuit.”

   Hilde, being older than 50, was eligible for retirement benefits under his union’s collective bargaining agreement with the city at the time of his application. Members of the police commission were aware of that fact, according to court documents.

   Muller said he intends to argue in the appeal that Hilde was discriminated against because the retirement benefits are based solely on age. He said the commission also treated Hilde differently than the other candidates, including lowering the initial scores he was given inthe interview process.

   “These are things that a jury could latch onto and conclude that the decision was based on age, and not qualifications,” Muller said.

   But Beety said she doesn’t believe there is any reason for the appellate court to overturn Kyle’s decision. She said the two sides are in agreement on the facts of the case, negating the need for a jury.

   “Ultimately, the question is what happened with this hiring process,” she said. “Is there any indication that age was motivating any decision? And there isn’t, so the law supports that it should be dismissed without a trial.”

   The plaintiffs filed a notice of appeal last week, but have until Feb. 24 to submit a brief supporting the request. After that, defense attorneys will have an opportunity to respond and the plaintiffs will be able to submit a reply.

   Oral arguments before a three-judge panel in St. Louis probably won’t come until the summer or fall, attorneys said.

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