Torgerson v. City of Rochester

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1131

___________

David Torgerson; Jami Mundell, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

City of Rochester, *

*

Appellee. *

___________

Submitted: November 17, 2009

Filed: May 21, 2010

___________

Before MURPHY, SMITH, and BENTON, Circuit Judges.

___________

SMITH, Circuit Judge.

David Torgerson and Jami Mundell (collectively, "appellants") challenged the

City of Rochester, Minnesota's decision not to hire them as firefighters. Torgerson and

Mundell alleged that Rochester discriminated against them in violation of state and

federal law. Torgerson, a Native American male, alleged discrimination on the basis

of national origin. Mundell, a white female, alleged gender discrimination. Torgerson

and Mundell made the claims under Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C §§ 2000e–2000e-17 (20\00), and the Minnesota Human Rights Act

(MHRA), Minn. Stat. §§ 363A.01–.41 (2006). In addition, Torgerson brings a claim

under 42 U.S.C. § 1981 (2000). The district court granted Rochester's motion for

summary judgment. For the reasons set forth below, we affirm in part and reverse in

part.

I. Background

A. The Hiring Process

Rochester followed a state statute-driven process for hiring firefighters. In

accordance with Minnesota Statute § 420.06, Rochester's Fire Civil Service

Commission ("the Commission") oversees the employment of all officers of the

Rochester Fire Department ("Fire Department"). The Commission consists of three

Commissioners, and any Commission action requires an affirmative vote by at least

two Commissioners.

According to the Commission's Fire Civil Service Rules and Regulations ("the

Regulations"), if a candidate possesses the minimum requirements to apply,1

candidates must then pass written and physical fitness tests to be eligible for

appointment. Phase I of the examination process is a written test, which counts for 30

percent of a candidate's final score. The candidates who receive the 50 highest scores

on the written test advance to Phase II, the physical agility test. The physical agility

test also accounts for 30 percent of a candidate's final score.2 Of the 50 candidates who

participate in Phase II, all who pass the physical agility test advance to Phase III,

which is an interview with a three-person panel.

1

It is undisputed that Torgerson and Mundell possessed the minimum

requirements.

2

Applicants are awarded points for Phase II based on the time it takes them to

complete the agility test. An applicant who takes more than 6 minutes and 30 seconds

to complete the agility test fails the test and cannot continue in the examination

process. Neither Torgerson nor Mundell challenge the written or physical

examinations.

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All three panel interviewers score a candidate's responses to the interview

questions on a scale of 1 to 10. One panel interviewer represents the Commission, one

represents Rochester's human resources department, and one represents the Fire

Department. The human resources department provides a set of interview questions

and instructs the panel on how to ask the questions and what responses are considered

good responses. These questions are also distributed to the candidates prior to the

interview. The panel interviewers are given objective scoring criteria to establish

which indicators show whether a candidate has desired qualities. Nonetheless,

Rochester concedes that the panel interview contains inherent subjectivity. This panel

interview accounts for the final 40 percent of a candidate's final score.3 Based on the

scoring from the three phases of the selection process, each candidate is ranked and

placed in rank order on an eligibility list that the Commission then certifies. The

Commission then votes to certify the eligibility list, which stands for two years. All

candidates on the eligibility list are qualified for the position of firefighter, although

those ranked higher are considered more qualified.

According to the Regulations, when a vacancy is anticipated or occurs, the fire

chief must make a written request to the Commission to certify to the Rochester City

Council ("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 Regulations permit—but do not require—the certification of up to two

eligible candidates from each "protected group" for which a disparity exists between

the composition of the Fire Department and Rochester's approved affirmative action

3

To get the final score, the candidates' "raw" scores for each phase are converted

to "eligibility points" by multiplying the raw score for each phase by the weight

assigned to the phase. A candidate's final score is the total of his or her eligibility

points, including any veteran's points awarded in accordance with Minnesota Statute

§ 197.455. Non-disabled veterans receive a credit of five eligibility points and

disabled veterans receive a credit of ten eligibility points. Id.

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goals.4 This expanded certification is in addition to the rule-of-three certification and

is made in rank order.

The rule of three requires the Commission to 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 Rochester appoints the

highest-ranked candidate for the first 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

pursuant to the expanded certification procedure. However, before certification, each

candidate eligible for certification for appointment, including any protected-group

candidate, must pass one final stage.

The final candidates must pass a background check and an interview with the

fire chief, as well as medical and psychological examinations. According to the

Regulations, if a candidate fails the interview with the fire chief, background check,

medical examination, or psychological examination, the Commission considers the

next qualified candidate on the eligibility list. The City Council makes the final hiring

decision, but according to City Council member Patrick Carr, the City Council abides

by the recommendations the Commission offers. In the past, Rochester has used an

expanded certification to hire women and non-white firefighters who were not ranked

at the top of the eligibility list. However, if a protected class applicant moves on to the

fire chief interview, the candidate retains his or her original rank on the eligibility list.

Therefore, although all candidates on the eligibility roster meet the minimum

qualifications for the firefighter position, those at the top of the list are recognized as

more qualified for the position than those at the bottom of the list.

4

Native Americans and women are considered protected groups.

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The focus of the final fire chief interview changes when it comes to

interviewing candidates lower on the list pursuant to expanded certification.

Ordinarily, the final interviews are used to determine if the testing in Phases I, II, and

III missed something that shows there is a reason not to hire a candidate. With respect

to protected-class candidates who rank on the bottom of the list, however, the

interviews are used to see if the testing missed something that shows there is a reason

to hire the candidate over those scoring higher in the process.

B. The Challenged Hirings

In fall 2005, Rochester sought to hire seven firefighters. Rochester received

funding for three positions through a federal "Staffing for Adequate Fire and

Emergency Response" (SAFER) grant. The SAFER grant provided federal funds to

aid Rochester in hiring additional firefighters. The grant itself outlines its purpose:

The purpose of the SAFER grant is to award a grant 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.

Program Guidance for the Staffing for Adequate Fire and Emergency Response

(SAFER) Grants 3 (May 2005), available at

www.fishers.in.us/egov/docs/1118931743_470855.pdf.

The grant contained a list of "Grantee Responsibilities" which included the

following: "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." Id. at 18.

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In 2005 Rochester began a hiring process that resulted in the certification of 48

candidates on the eligibility list. The eligibility list included three protected-group

candidates: Torgerson, Mundell, and a second white 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 to the Fire Department, he was

a volunteer firefighter. Torgerson had completed three years of college toward a

degree in fire protection, including completion of Fire Fighter I and Fire Inspection

courses, for which he held licenses. He had received certifications as an Emergency

Medical Technician (EMT) from the National Registry of Emergency Medical

Technicians (NREMT) and the Minnesota Emergency Medical Services Regulatory

Board. Mundell, at the time of her application, had an associate degree in business

management and had earned a diploma in intensive care paramedics from a local

community college. She had a NREMT certificate, and her EMT-Basic license. She

also received licenses for completing Fire Fighter I and Fire Fighter II courses.

At the end of the objective written and agility phases of the examination process

(Phases I and II), Torgerson was ranked 41st and Mundell was ranked 46th out of 48

candidates. By virtue of passing the agility test, both candidates advanced to the panel

interview phase. Mundell's score sheet indicates that Battalion Chief Charles

Hermann, Rochester Human Resources Risk Management Analyst Joan Till-Born, and

Commissioner Joe Powers conducted Mundell's panel interview. According to

Torgerson's score sheet, Till-Born, Hermann, and Commissioner John Withers

conducted Torgerson's panel interview. Both Torgerson and Mundell agree that the

questions asked were what they anticipated based on the list of possible questions and

that none of the questions were inappropriate. Mundell and Torgerson scored 37th and

41st, respectively, on the panel interview phase, which is a subjective phase. This

scoring, combined with their scores from the written and physical examinations

phases, placed Mundell 40th on the eligibility list and Torgerson 45th when the

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Commission certified the eligibility list of 48 candidates at a meeting on November

22, 2005.5

Notably, some candidates—including those who benefitted from the proper

application of veteran's points—made dramatic increases in the rankings after the

subjective panel-interview phase. In fact, of the top eight-ranked candidates on the

original eligibility list, seven were awarded veteran's points, including the top six.

This illustrates the narrow margin between all candidates in terms of total score. As

will be explained infra, this portion of the application process had substantial impact

on the overall rank of the candidates. On December 15, 2005, Fire Chief David Kapler

sent a memorandum to the Commission asking it to forward a list of candidates from

the eligibility list to fill seven vacancies.

On January 18, 2006, the Commission met and discussed the purpose of the

SAFER grant and whether the Commission should expand the certification to include

protected group candidates. At the meeting, Rochester Human Resources Director

Linda Gilsrud noted the "minimal differences in the total points between candidates"

on the eligibility list.6 Gilsrud explained the responsibilities attached to the SAFER

grant and informed the Commission that there were three protected-class applicants

who had been certified on the eligibility list. Powers said that while all candidates on

the eligibility list are qualified, the rank order should be carefully considered. The

Commission then passed a motion to certify to the City Council the rule-of-three

candidates in rank order for six of the appointments and the rule-of-three candidates

plus an expanded certification for the seventh appointment. As a result, nine initial

candidates, plus the protected-group candidates, received interviews. The 12 eligible

candidates were then required to complete the final phases of the selection process:

5

The other female candidate was ranked 37th. It is unknown why 48 and not 50

candidates remained on the eligibility list at this point.

6

A total of ten points separated the candidates ranked 1st and 25th.

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an in-depth background investigation and interview with the fire chief. Torgerson and

Mundell moved on to the fire chief interview for the seventh position, while retaining

their 45th and 40th rankings, respectively. By recommending all three protected-class

applicants for only the seventh position, at most one member of the protected class

could have been hired.

Kapler, with the assistance of Deputy Fire Chief Dan Slavin, interviewed

Candidates 1 through 9—all white males—and the three protected-group candidates.7

When interviewing the top-ranked candidates, Kapler looked to see if there was a "red

flag. Something that show[ed] up. It could be a gut-level feeling . . . that might give

us a clue that there is a concern about a candidate." When interviewing the protected-

group candidates, Kapler looked to see if there was "something that might have been

missed. Is there some quality or attribute this person brings that didn't come out in the

test that we can say, 'Wow, this is a strong candidate regardless of their test scores.'"

Kapler failed Candidate 3 because he did not have his NREMT certification. Kapler

also failed Candidate 4 because he did not appear for his interview.

Kapler then interviewed four additional candidates—Candidates 10 through 13.

On February 13, 2006, Kapler issued a memorandum containing his

recommendations. In addition to not recommending Candidates 3 and 4, he also did

not recommend Candidate 10 because he "was not eligible for [NREMT registry]

before the [eligibility] list was certified" and Candidate 11 because he did "not

demonstrate the level of maturity and preparedness to be successful."

Kapler also did not recommend the three protected-group candidates because

they did not "demonstrate[ ] themselves to be equally or better qualified" than the

recommended individuals. According to Kapler's notes from the interview, he found

7

The candidates are referred to by their ranking on the eligibility list.

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that Torgerson had "awkward communication"; came across as "unsophisticated"; had

difficulty communicating; in sum, "he lacked the characteristics other applicants

possessed." Kapler also found that Torgerson did not demonstrate anything to make

himself more qualified than the other candidates. Kapler did not recommend Mundell

because during the interview she did not demonstrate that she was more or better

qualified than the candidates at the top of the eligibility list.

The Commission, with all three commissioners present, discussed Kapler's

recommendations on February 27, 2006. Also on that date, Kapler withdrew

recommendations for two additional candidates—Candidate 2 because Kapler did not

expect the results of the candidate's medical examination in time for hiring and

Candidate 5 because he did not have his NREMT certification when the eligibility list

was certified. Of the top 13 candidates, Kapler did not recommend six, leaving the

Commission with only seven recommended candidates (and at least nine are needed

for the "rule of three"). Kapler then requested an additional four candidates for

interviews.

The Commission later voted to permit the three candidates Kapler had not

recommended because they lacked NREMT certification or were not NREMT-registry

eligible—Candidates 3, 5 and 10 (collectively, "non-NREMT candidates") to continue

in the selection process. The Commission decided that the non-NREMT candidates

were eligible for appointment because it determined that the information provided to

candidates regarding the meaning of NREMT "registry eligible" was ambiguous. On

March 15, 2006, Kapler issued a memorandum recommending Candidates 1 through

3 and 5 through 10 for appointment to satisfy the rule of three for seven positions.8

Kapler testified that he changed his recommendation as to the non-NREMT candidates

8

The record does not reflect why Kapler changed his recommendation with

respect to Candidate 2, and appellants do not challenge Kapler's changed

recommendation with respect to Candidate 2.

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"[o]nce the Commission declared them eligible." Kapler made no mention of the

protected-group candidates or Candidates 11 through 13 in his March 15

memorandum. At a Commission meeting on the same day, Withers and Powers voted

to present the candidates as recommended by Kapler to the City Council.

Commissioner Roger Field was not present.

The City Council appointed Candidates 1 through 3 and 5 through 8 as

firefighters on March 20, 2006. Shortly after the City Council's appointments, the

press released the news that Candidate 3 had been convicted of vehicular homicide.

In response to calls from constituents about the appointments, City Councilman Carr

investigated Rochester's hiring process. During the course of his investigation, Carr

came to believe that the SAFER grant required Rochester to seek, recruit, and appoint

women and minorities. Carr testified that he called Field and described the

conversation as follows:

I said—the first question I asked [Field] was are you aware of all of the

terms and conditions of the SAFER grant. And then he said, "What do

you mean?" And I said, "Well, they stipulated you hire women and

minorities." And he said, "I knew nothing of that." He said, "Had I

known, I would have recommended that the City not take the grant." He

said the City should never have taken the grant if that was the stipulation.

At an emergency meeting called to decide whether to reconsider the

appointments based on the appointment of a convicted felon, Carr attempted to discuss

whether Rochester had complied with the SAFER grant. Deputy City Attorney David

Goslee advised the City Council that compliance with the SAFER grant was not a

topic for the emergency meeting. The City Council did not discuss the SAFER grant

and decided not to reconsider the seven appointments, resulting in the hiring of

Candidates 1 through 3 and 5 through 8. At some point Carr also had a conversation

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with Withers, during which time Withers allegedly told Carr that the Commission

wanted to hire Candidate 3 (the convicted felon) because he is a "big, strong guy."9

Torgerson and Mundell filed discrimination charges with the Minnesota

Department of Human Rights (MDHR) and the Equal Employment Opportunity

Commission (EEOC). The MDHR found that the evidence did not substantiate

Torgerson and Mundell's allegations in March, 2007. The EEOC adopted the MDHR's

findings. Torgerson and Mundell then filed suit in district court, asserting claims of

national origin, sex, and race discrimination under Title VII, the MHRA, and § 1981.

Rochester moved for summary judgment, and the district court granted

Rochester's motion. The district court first found that Torgerson's § 1981 claim should

be dismissed because his discrimination claims were based on national origin—not

race—and national-origin discrimination alone is insufficient to support a § 1981

claim.

Next, the district court found that Torgerson and Mundell failed to present

direct evidence of discrimination in support of their Title VII claim. The court

assumed that both Torgerson and Mundell made a prima facie case on the claim, but

found that neither Torgerson nor Mundell presented evidence discrediting Rochester's

reason for not hiring them or offered any evidence giving rise to an inference of

discrimination. The district court, therefore, concluded that the appellants did not meet

their burden of showing that Rochester's stated non-discriminatory reason for not

hiring Torgerson and Mundell—that the appellants scored lower than the fired

candidates during the testing phase and the interview portion showed the appellants

were lacking in qualifications—was mere pretext for discrimination.

9

The record is unclear exactly when this statement was made.

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II. Discussion

A. Summary Judgment Standard

Torgerson and Mundell argue that the district court erred when it granted

Rochester's motion for summary judgment. The appellants allege that the district

court, contrary to the summary-judgment standard, impermissibly weighed and

evaluated evidence and reached conclusions not proper for summary judgment. The

appellants also argue that the district court used a "pretext plus" standard now rejected

by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Rochester

responds that the district court properly granted its motion for summary judgment

because Torgerson and Mundell presented no evidence that either discredited

Rochester's reason for not hiring them or raised an inference of discrimination, either

through direct or indirect evidence.

We review grants of summary judgment de novo. Wojewski v. Rapid City Reg'l

Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006). "Summary judgment is appropriate

when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law." Id. (internal quotations and citation omitted). Notably,

we have repeatedly emphasized that "summary judgment should be used sparingly in

the context of employment discrimination and/or retaliation cases where direct

evidence of intent is often difficult or impossible to obtain." Wallace v. DTG

Operations, Inc., 442 F.3d 1112, 1117 (8th Cir. 2006); see also Peterson v. Scott

County, 406 F.3d 515, 520 (8th Cir. 2005) ("Summary judgment should seldom be

granted in employment discrimination cases because intent is often the central issue

and claims are often based on inference."); Wheeler v. Aventis Pharm., 360 F.3d 853,

857 (8th Cir. 2004) ("However, in employment discrimination cases, because intent

is inevitably the central issue, we apply the standard with caution."); Breeding v.

Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999) ("Summary judgment

seldom should be granted in discrimination cases where inferences are often the basis

of the claim. . . ."); Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000)

(collecting cases stating same). "We have also stated, however, that no separate

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summary judgment standard exists for discrimination or retaliation cases and that such

cases are not immune from summary judgment." Wallace, 442 F.3d at 1118; (citing

Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999) ("[T]here is no

'discrimination case exception' to the application of Fed. R. Civ. P. 56, and it remains

a useful pretrial tool to determine whether or not any case, including one alleging

discrimination, merits a trial.")).

We have also repeatedly cautioned that summary judgment should not be

granted in "close" cases. "[T]he need to resolve factual issues in close cases is the very

reason we have juries." First Nat'l Bank of Omaha v. Three Dimension Systems

Products, Inc., 289 F.3d 542, 545 (8th Cir. 2002); see also Kehoe v. Anheuser-Busch,

Inc., 995 F.2d 117, 120 (8th Cir. 1993) (reversing grant of summary judgment in "very

close case").

Summary judgment is thus proper "if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c)(2). The movant "bears the initial responsibility of informing the

district court of the basis for its motion," and must identify "those portions of [the

record] . . . which it believes demonstrate the absence of a genuine issue of material

fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its

burden, the nonmovant must respond by submitting evidentiary materials that "set out

specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). In

determining whether summary judgment is appropriate, a court must look at the record

and any inferences to be drawn from it in the light most favorable to the nonmovant.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

B. Alleged Discrimination

Torgerson and Mundell make disparate treatment claims under Title VII and the

MHRA alleging discrimination on the basis of Torgerson's national origin and

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Mundell's sex. Title VII provides that it is "an unlawful employment practice for an

employer . . . to fail or refuse to hire . . . any individual . . . because of such

individual's . . . sex . . . or national origin." 42 U.S.C. § 2000e-2(a)(1). The MHRA

states that "it is an unfair employment practice for an employer, because of

. . . national origin [or] sex . . . to . . . refuse to hire" or "discriminate against a person

with respect to hiring . . . ." Minn. Stat. § 363A.08, subd. 2. The court analyzes

MHRA and Title VII claims using the same standard. See Kasper v. Federated Mut.

Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005).

The two parties here agree that there are multiple ways to prove or disprove a

Title VII claim, either with a showing of direct evidence or by creating the requisite

inference of unlawful discrimination under the framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). See Griffith v. City of Des

Moines, 387 F.3d 733, 736 (8th Cir. 2004).

We have long recognized and followed this principle in applying

McDonnell Douglas by holding that a plaintiff may survive the

defendant's motion for summary judgment in one of two ways. The first

is by proof of "direct evidence" of discrimination. Direct evidence in this

context is not the converse of circumstantial evidence, as many seem to

assume. Rather, direct evidence is evidence "showing a specific link

between the alleged discriminatory animus and the challenged decision,

sufficient to support a finding by a reasonable fact finder that an

illegitimate criterion actually motivated" the adverse employment action.

Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997).

Thus, "direct" refers to the causal strength of the proof, not whether it is

"circumstantial" evidence. A plaintiff with strong (direct) evidence that

illegal discrimination motivated the employer's adverse action does not

need the three-part McDonnell Douglas analysis to get to the jury,

regardless of whether his strong evidence is circumstantial. But if the

plaintiff lacks evidence that clearly points to the presence of an illegal

motive, he must avoid summary judgment by creating the requisite

inference of unlawful discrimination through the McDonnell Douglas

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analysis, including sufficient evidence of pretext. See, e.g., Harvey v.

Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994).

Griffith, 387 F.3d at 736.

We hold that Torgerson and Mundell created the requisite inference of unlawful

discrimination under a McDonnell Douglas analysis, including sufficient evidence of

pretext, and therefore may present their claims to a jury. See infra part II.B.1.c.

1. Indirect Evidence

Under the McDonnell Douglas framework, the appellants must first make out

a prima facie case for discrimination. 411 U.S. at 802. Then, the burden shifts to

Rochester to "articulate [a] legitimate, nondiscriminatory reason" for not hiring

Torgerson and Mundell. Id. "[T]he ultimate burden [then] falls on [Torgerson and

Mundell] to produce evidence sufficient to create a genuine issue of material fact

regarding whether [Rochester's] proffered nondiscriminatory justifications are mere

pretext for intentional discrimination." Pope v. ESA Serv., Inc., 406 F.3d 1001, 1007

(8th Cir. 2005).

a. Prima Facie Case

The McDonnell Douglas framework requires the appellants to first establish a

prima facie case of discrimination. A plaintiff can establish a prima facie case of

discrimination by showing that

"(i) that he belongs to a racial minority; (ii) that he applied and was

qualified for a job for which the employer was seeking applicants; (iii)

that, despite his qualifications, he was rejected; and (iv) that, after his

rejection, the position remained open and the employer continued to seek

applications from persons of complainant's qualifications."

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Sallis v. Univ. of Minn., 408 F.3d 470, 475 (8th Cir. 2005) (quoting McDonnell

Douglas, 411 U.S. at 802).

Rochester argues that Torgerson and Mundell did not make out a prima facie

case because they failed to show that firefighter positions were given to other people

with Torgerson and Mundell's qualifications. In support, Rochester contends that the

people who received the firefighter jobs were not similarly situated to the appellants

because they were ranked higher on the eligibility list due to their higher scores on

both the objective and subjective testing and interviewing. Torgerson and Mundell

bear the burden to prove that the employees ultimately hired were similarly situated

in all relevant respects. Harvey, 38 F.3d. at 972. Torgerson and Mundell did present

evidence showing they had similar qualifications to the candidates who were

ultimately hired, such as similar education and medical certifications.

We recognize that there was a difference—the candidates ultimately hired were

ranked higher on the eligibility list. However, a close review of the record shows that

the rankings were significantly impacted by the subjective interview process, which

accounted for 40 percent of the final score. While the final difference between the top-

weighted score (91.826) and lowest-weighted score (68.120) appears large, the

disparity between the candidates in only the objective portion of the testing was in fact

much closer. Of the 48 eligible candidates, the top score in the objective portion was

55.95, while the low score was 48.60. Conversely, in the subjective interview portion

of testing, the high score was 34.064, while the low was 15.620, a significantly greater

disparity than seen in the objective portion. Again, considering only the objective

written and physical portions of the hiring process, Torgerson's weighted score was

50.85, which put him ahead of the objective score of hired Candidate 8 (50.55) and

tied him with hired Candidate 6 (50.85). Mundell's objective weighted score of 50.25

put her within three-tenths of a point of hired Candidate 8.

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Finally, while this higher overall ranking is a difference between candidates, it

is not as material as not being qualified for the job, and it is undisputed that all of the

candidates were qualified. Torgerson and Mundell's burden to show that they are

similarly situated and subject to disparate treatment at this prima facie stage is not a

difficult one to prove, and it is appropriate to apply a low-threshold standard. Rodgers

v. U.S. Bank, N.A., 417 F.3d 845, 852 (8th Cir. 2005). "The burden of establishing a

prima facie case of disparate treatment is not onerous." Texas Dep't of Cmty. Affairs

v. Burdine, 450 U.S. 248, 253 (1981). To meet this low-threshold standard, Torgerson

and Mundell must show that they possessed similar qualifications to other candidates

and were treated differently, in this case, not hired. Cf. Wheeler, 360 F.3d at 857

(holding that for purposes of evaluating a prima-facie case it is appropriate to consider

whether the employees who are black were involved in or accused of the same or

similar conduct as white employees but disciplined in different ways). We find that

Torgerson and Mundell have met this low standard.

With a prima facie case established, we thus move on to the second prong of the

McDonnell Douglas framework.

b. Legitimate, Nondiscriminatory Reasons

Upon establishment of a prima facie case, the burden shifts to Rochester. "The

burden to articulate a nondiscriminatory justification is not onerous, and the

explanation need not be demonstrated by a preponderance of the evidence." Floyd v.

State of Mo. Dept. of Soc. Servs., Div. of Family Servs., 188 F.3d 932, 936 (8th Cir.

1999). Rochester met this non-onerous burden with its proffered reason for not hiring

Torgerson and Mundell: "[Rochester] did not hire Appellants because both scored

significantly lower than other candidates. It also did not hire Appellants because their

interviews with Chief Kapler only confirmed what the testing phase had shown: both

Appellants were lacking in qualifications as compared to the higher ranking

candidates."

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c. Pretext for Intentional Discrimination

Torgerson and Mundell argue that Rochester's stated reason for not hiring them

is pretext for discrimination. As a preliminary matter, appellants assert that the district

court held them to an incorrect legal standard when the court ruled that "[t]o succeed

on this claim, Plaintiffs must both discredit [Rochester]'s reason for not hiring them

and show that circumstances permit drawing the reasonable inference that the real

reasons they were not hired were that Mundell is female and Torgerson's national

origin is Native American." The district court cited Johnson v. AT&T Corp., 422 F.3d

756 (8th Cir. 2005), to support this ruling. Johnson stated:

We have recognized that the showing of pretext necessary to survive

summary judgment requires more than merely discrediting an employer's

asserted reasoning for terminating an employee. Johnson is also required

to show that the circumstances permit a reasonable inference to be drawn

that the real reason AT&T terminated him was because of his race.

Id. at 763 (internal citation omitted).

Torgerson and Mundell argue that the district court's ruling is inconsistent with

the standard articulated in Reeves, which stated that

it is permissible for the trier of fact to infer the ultimate fact of

discrimination from the falsity of the employer's explanation.

Specifically, [the Court] stated:

"The factfinder's disbelief of the reasons put forward by the

defendant (particularly if disbelief is accompanied by a

suspicion of mendacity) may, together with the elements of

the prima facie case, suffice to show intentional

discrimination. Thus, rejection of the defendant's proffered

reasons will permit the trier of fact to infer the ultimate fact

of intentional discrimination."

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530 U.S. at 147 (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511

(1993)).

Reeves thus reaffirmed the Court's previous holding in St. Mary's that the trier

of fact may infer discriminatory intent when the plaintiffs make a prima facie case and

discredit the employer's proffered reason for not hiring them. Reeves requires the

district court to determine whether reasonable inferences of discriminatory intent can

be made. If the evidence is sufficient to permit a reasonable jury to make such

inferences, the jury should be permitted to do so. Reeves does not require district

courts to decide whether or how those inferences should be made only whether they

can be. "Proof that the defendant's explanation is unworthy of credence is simply one

form of circumstantial evidence that is probative of intentional discrimination, and it

may be quite persuasive." Id. "In appropriate circumstances, the trier of fact can

reasonably infer from the falsity of the explanation that the employer is dissembling

to cover up a discriminatory purpose." Id.

There are at least two ways a plaintiff can establish a material question of fact

regarding pretext. Wallace, 442 F.3d at 1120. A plaintiff may show pretext with

evidence that the employer's explanation is unworthy of credence because it has no

basis in fact. Id. Alternatively, a plaintiff may show pretext by persuading the court

that a prohibited reason—more than the proffered reason—likely motivated the

employer. Id. Torgerson and Mundell proffer several examples of alleged conduct that

they claim show indirect discrimination: (1) the subjective nature of the hiring

process, including the panel and fire chief interviews; (2) the different standards

Kapler used in the fire chief interviews; (3) Kapler's reference to Torgerson and

Mundell as "unfit"; (4) the hiring of some white candidates with similar or lower

qualifications than the appellants; and (5) the hiring of an additional five white males

after this challenged 2006 hiring process.

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"Although subjective [hiring] procedures are susceptible of discriminatory

abuse and require close scrutiny, subjectivity alone does not render an employment

decision infirm." Brooks v. Ameren UE, 345 F.3d 986, 988 (8th Cir. 2003) (internal

citation omitted). Rochester's hiring process has several phases; some are objective

and some are subjective. The appellants first challenge each of the subjective

components: the panel interviews and the fire chief interviews.

Looking at the evidence in the light most favorable to the appellants, we ask

if there is a genuine issue of material fact as to whether Rochester's reasons were

pretextual. We hold that Torgerson and Mundell have produced sufficient evidence

that material fact issues remain.

The panel interviews are subjective and weighted to account for 40 percent of

the applicant's final score—the largest single component. The fire chief interviews

were similarly subjective. While these facts alone do not prove that these interviews

became tools of discrimination, the subjectivity involved does warrant scrutiny. Id.

The district court concluded that the controls implemented by Rochester—such as

using representatives from three different divisions of city government, asking

predetermined questions, and using established scoring criteria—ensured that proper

steps were taken to "minimize the panel interview's susceptibility to abuse." Upon

review, we conclude that deciding the efficacy of Rochester's steps to ensure

nondiscriminatory evaluation is, on the facts in this record, better reserved for the jury.

Also, the district court acknowledged that Rochester's subjectivity controls only

minimized susceptibility to abuse, they did not eliminate it. Thus, the material fact of

potential discriminatory abuse of the subjective interview process remains.

Additionally, neither this court nor the district court can determine from the

record whether Torgerson and Mundell received lower scores than other candidates

who gave similar answers. The record is devoid of any notes from these panel

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interviews. The reasons for their absence likely involve fact questions best resolved

by the fact-finding mechanisms which will inhere in the trial.

We apply a similar analysis regarding the subjective nature of the final fire

chief interview. Unlike the panel interviews, there were no controls on the subjectivity

of the fire chief interview. Rochester does not deny that Kapler used a different

standard when interviewing the top candidates and the candidates from the protected

class. While instances of disparate treatment between applicants can demonstrate

pretext, at this stage Torgerson and Mundell must prove they were similarly situated

to the hired candidates "in all relevant respects." Rodgers, 417 F.3d at 853. "[T]he

burden for establishing 'similarly situated' at the pretext stage is rigorous." Wheeler,

360 F.3d at 858. The appellants may not ultimately be able to carry their burden under

this rigorous standard. However, when ruling on a summary judgment motion, we

must only decide if there is a question of fact. Again, we find that such a question

remains.

"Where . . . the employer contends that the selected candidate was more

qualified . . . than the plaintiff, a comparative analysis of the qualifications is relevant

to determine whether there is reason to disbelieve the employer's proffered reason for

its employment decision." Chock v. Nw. Airlines, Inc., 113 F.3d 861, 864 (8th Cir.

1997). "If this comparison successfully challenges the employer's articulated reason

for the employment decision, it might serve to support a reasonable inference of

discrimination." Chambers v. Metro. Prop. and Cas. Ins. Co., 351 F.3d 848, 857 (8th

Cir. 2003). "[A] comparison that reveals that the plaintiff was only similarly qualified

or not as qualified as the selected candidate would not raise an inference of

. . . discrimination." Chock, 113 F.3d at 864.

A comparison in this case shows that Torgerson and Mundell possessed similar

qualifications as the hired candidates, such as having (1) completed ride-alongs with

the Fire Department, (2) college degrees, (3) past experience, and (4) EMT

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certifications. Rochester concedes these similar qualifications but relies on

Torgerson's and Mundell's lower rank on the eligibility list than the hired candidates.

According to Rochester, this lower ranking means the appellants were not similarly

situated. However, appellants claim they sat lower on the eligibility list because they

were discriminated against during the subjective panel interviews. Taking the

eligibility-list ranking out of the equation, Torgerson and Mundell appear similarly

situated to the hired candidates. Based on the record before us, we conclude that there

is a genuine question of material fact whether the subjective panel and fire chief

interview results served as pretext for discrimination.

Torgerson and Mundell also argue that Kapler's description of them as "unfit"

is evidence of discriminatory animus. Kapler made the statement to Carr at a June

2006 meeting. Carr opined that Rochester should not hire anyone else under the

SAFER grant, lest a minority candidate not hired hail the city to court. Kapler

responded that he interviewed Torgerson and Mundell and "found them unfit." When

asked in a deposition if he thought Torgerson and Mundell to be "unfit," Kapler

replied:

Well, I guess it depends on what the word "fit" means. To us it has a

specific connotation. A fitness for duty type of evaluation, mental,

emotional, physical, is all part of a person's fitness for duty. So that's

how I use the word fit. They are—they are on our list as qualified

candidates, so yes, they're qualified to be firefighters.

The district court concluded that "Kapler's distinction between 'qualified' and

'fit' does not give rise to an inference of discrimination." However, "[a]t summary

judgment, because we view the facts in the light most favorable to the non-moving

party, we do not weigh the evidence or attempt to determine the credibility of the

witnesses." Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004).

Here, the district court credited Kapler's proffered explanation of his use of the word

"unfit." On summary judgment, the non-moving plaintiff is entitled to reasonable

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inferences in his or her favor. The conclusion reached by the district court is not the

only reasonable inference from the facts.10 The jury must ultimately decide the

meaning and credibility of Kapler's explanation after a trial on the merits.

2. Direct Evidence

Because we find that Torgerson and Mundell sufficiently established a genuine

issue of material fact as to whether they suffered discrimination by a showing of

indirect evidence of discrimination, we need not decide whether there is direct

evidence of discrimination in this case and instead leave such matters to a jury.

C. Torgerson's § 1981 Claim

Torgerson also claims Rochester violated 42 U.S.C. § 1981 by discriminating

against him "on the basis of his national origin." Section 1981 "protect[s] from

discrimination identifiable classes of persons who are subjected to intentional

discrimination solely because of their ancestry or ethnic characteristics." St. Francis

Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). For example, if an individual is

"subjected to intentional discrimination based on the fact that he was born an Arab,

rather than solely on the place or nation of his origin . . . [then] he will have made out

a case under § 1981." Id. We have interpreted this ruling to hold that § 1981 does not

encompass discrimination claims based upon national origin. Zar v. S.D. Bd. of

Exam'r of Psychologists, 976 F.2d 459, 467 (8th Cir. 1992) ("This claim of

discrimination based upon national origin is insufficient to state a § 1981 claim.").

10

We note that, for whatever reasons, the Fire Department lacks gender and

racial diversity. At the time of this appeal, Rochester had hired only three non-white

firefighters in its recorded history: one Native American who is no longer with the

department; one Asian, who is no longer with the department; and one

African-American. Of the 105 employees at the time of appeal, there are two female

firefighters (1.9 percent) and one non-white firefighter (0.95 percent). The 2000

census reports that, of individuals in the 18 to 39 year-old-age group in Rochester, 45

percent are women and 14 percent are minority.

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Torgerson argues that his claim is correctly read as stating that he was

discriminated against because he is Native American and that his § 1981 claim should

not be dismissed because claims based on Native-American status have been treated

as both race and national origin claims. Torgerson is correct that a party may bring a

claim of discrimination based on his Native-American status as a claim based on race.

See Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist., 154

F.3d 1117, 1119 n.4 (9th Cir. 1998). We agree that a claim stating that a plaintiff has

been discriminated against because he is a Native American could be sustained under

§ 1981. But a race claim based on Native-American status must be so stated as a race

claim, which Torgerson failed to do. Torgerson's complaint instead states, "Defendant

has discriminated [ ] against Plaintiff in the formation of an employment contract on

the basis of his national origin, in violation of 42 U.S.C. §1981." (Emphasis added).

At no time did Torgerson move to amend his Complaint to include a claim of race

discrimination. Torgerson testified in a deposition that he believes he was

discriminated against because of his national origin, and prior to Rochester's motion

for summary judgment, Torgerson never referred to race in any court documents.

Because Torgerson alleges he was discriminated against based on his national origin,

not race, he cannot sustain a § 1981 claim.

III. Conclusion

Accordingly, we affirm the district court's dismissal of Torgerson's § 1981

claim but reverse the grant of summary judgment on Torgerson and Mundell's Title

VII claim and remand to the district court for further proceedings.

BENTON, Circuit Judge, dissenting in part, and concurring in part.

I disagree with the Court’s conclusion that Torgerson and Mundell “created the

requisite inference of unlawful discrimination under a McDonnell Douglas analysis,

including sufficient evidence of pretext.” Ante, at 15. In my view, Torgerson and

Mundell do not produce evidence from which a reasonable jury could find that

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Rochester’s stated reason for not hiring them – that they scored lower in the hiring

process than candidates hired – is pretext for discrimination.

There are at least two ways a plaintiff can establish a material question of fact

regarding pretext. Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir.

2006). A plaintiff may show the employer’s explanation is “unworthy of credence,

because it has no basis in fact.” Id. (quotations and citations omitted). A plaintiff

may also show pretext directly, by “persuading the court that a [prohibited] reason

more likely motivated the employer.” Id.

The Court concludes that the following evidence creates a material question as

to pretext: (1) the “hiring of some white candidates with similar or lower

qualifications than the appellants,” (2) the subjective nature of parts of the hiring

process, and (3) Fire Chief Kapler’s reference to Torgerson and Mundell as “unfit.”

Ante, at 19-23.

1. Comparison of qualifications

“Where . . . the employer contends that the selected candidate was more

qualified for the position than the plaintiff, a comparative analysis of the qualifications

is relevant to determine whether there is reason to disbelieve the employer’s proffered

reason for its employment decision.” Chock v. Northwest Airlines, Inc., 113 F.3d

861, 864 (8th Cir. 1997). “[A] comparison that reveals that the plaintiff was only

similarly qualified or not as qualified as the selected candidate would not raise an

inference of . . . discrimination.” Id.

After quoting Chock, the Court states that “Torgerson and Mundell possessed

similar qualifications as the hired candidates.” Ante, at 21. “Similar qualifications”

do “not raise an inference of . . . discrimination.” Chock, 113 F.3d at 864. See also

Lidge-Myrtil v. Deere & Co., 49 F.3d 1308, 1311 (8th Cir. 1995) (“Although

-25-

[plaintiff] does possess the experience and some of the other qualities essential for

success in the position, this does not suffice to raise an inference that [the employer’s]

stated rationale for giving the position to another is pretextual”); Pierce v. Marsh, 859

F.2d 601, 603 (8th Cir. 1988) (“The mere existence of comparable qualifications

between two applicants . . . alone does not raise an inference of . . . discrimination.”).

In Pierce, the Army’s personnel office prepared a list of job candidates in rank

order. The Army hired Stokes (a black male) and Webb (a white female), who ranked

ahead of Pierce (a black male). Pierce sued for race discrimination; the Army

explained that Webb was more qualified, as reflected by her higher rank on the list.

The district court granted summary judgment to the Army.

On appeal, Pierce stressed an exhibit indicating “that his qualifications far

outweigh Webb’s qualifications, thus demonstrating that the Secretary’s legitimate

nondiscriminatory reason for the decision to hire Webb serves as a mere pretext . . .

.” Id. at 603. Reviewing the exhibit, this court concluded that Pierce and Webb had

“relatively similar qualifications,” and “neither candidate appears better qualified for

the foreman position.” Id. “Relatively similar qualifications” were not enough for

Pierce to survive summary judgment. See id. at 604 (“. . . Pierce failed to provide any

evidence from which a rational trier of fact could infer that the selecting committee’s

articulated nondiscriminatory reason for hiring Webb over Pierce was overcome by

any evidence establishing that reason as pretextual.”).

Here, like Pierce, Torgerson and Mundell appeared on an eligibility list, ranked

below the hired candidates. At best, they have “relatively similar qualifications” to

some hired candidates. As in Pierce, “relatively similar qualifications” do not create

a material issue of fact as to pretext.

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2. Subjectivity of hiring process

“Although subjective [hiring] procedures are susceptible of discriminatory

abuse and require close scrutiny, subjectivity alone does not render an employment

decision infirm.” Brooks v. Ameren UE, 345 F.3d 986, 988 (8th Cir. 2003) (internal

citation omitted).

Torgerson and Mundell emphasize that the panel interviews account for 40

percent of applicants’ scores, and stress the wide range of scores in these interviews.

But they fail to provide any evidence that the interviews were discriminatory. Panels

consisted of one interviewer from Rochester’s human resources department, one from

the Fire Civil Service Commission, and one from the Fire Department. The

interviewers received a list of (human-resources-prepared) questions to ask of all

candidates and were given scoring criteria to evaluate responses. Interviewees

received, in advance, the list of potential questions. Even Torgerson and Mundell

agree that the questions asked were what they anticipated based on the list of possible

questions, and that none of the questions was inappropriate.

After stating that the interviews “warrant [close] scrutiny,” the Court concludes

that “deciding the efficacy of Rochester’s steps to ensure nondiscriminatory

evaluation is, on the facts in this record, better reserved for the jury,” and “the material

fact of potential discriminatory abuse of the subjective interview process remains.”

Ante, at 20. The Court does not refer to any evidence that discrimination took place

11

– only to the “potential” for discrimination in the interviews. Plaintiffs cannot

11

The Court notes that Torgerson scored better than one, and equal to another,

hired candidate on the written and agility tests (and Mundell almost scored equal to

the lowest-scoring hired candidate). Ante, at 16. But the fact remains: “At the end of

the objective written and agility phases . . . Torgerson was ranked 41st and Mundell

was ranked 46th out of 48 candidates.” Ante, at 6. Thus, the interview scores

significantly affected the ranking of other candidates. The interview scores did not

-27-

survive summary judgment by identifying a part of the hiring process where there is

only “potential” for discrimination. Again, “subjectivity alone does not render an

employment decision infirm.” Brooks, 345 F.3d at 988.

In Pierce, as in this case, hiring officials ranked qualified candidates on a list

based on a combination of factors. This court said:

The selecting officials testified by affidavit that subjective factors, i.e.,

their evaluation based on personal observation of the candidates, also

entered into the selection decision. Even if these subjective reasons

could be rejected on credibility grounds, such a rejection of that evidence

would not add anything to the lack of a showing of pretext by Pierce.

Pierce, 859 F.2d at 603-04. Here, the fact that parts of the hiring process were more

subjective does not add anything to the lack of showing of pretext by Torgerson and

Mundell.

The Court notes that “neither this court nor the district court can determine from

the record whether Torgerson and Mundell received lower scores than other

candidates who gave similar answers [in the panel interview],” and concludes the

“reasons for their absence likely involve fact questions best resolved” at trial. Ante,

at 20-21. The burden, however, is on Torgerson and Mundell to provide evidence of

pretext. See, e.g., Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir. 2007)

(If the defendant provides a non-discriminatory reasons for its decision, “the

presumption [of discrimination] disappears, and the burden shifts back to the plaintiff

to show that the proffered reason was pretext for . . . discrimination”); Pope v. ESA

Serv., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005) (“[T]he ultimate burden falls on

[plaintiffs] to produce evidence sufficient to create a genuine issue of material fact

significantly affect the rankings of Torgerson or Mundell, who ranked low before and

after the interviews.

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regarding whether [the employer’s] proffered nondiscriminatory justifications are

mere pretext for intentional discrimination.”). Here, a reasonable jury could not infer

pretext from the absence of this evidence. See Pineda v. UPS, 360 F.3d 483, 487 (5th

Cir. 2004) (“To satisfy this burden, the plaintiff must offer some evidence that permits

the jury to infer that the proffered explanation was a pretext for discrimination. The

trier of fact may not simply choose to disbelieve the employer’s explanation in the

absence of any evidence showing why it should do so.”) (internal quotations and

alterations omitted).

Torgerson and Mundell’s objections to the process creating the eligibility list

are unpersuasive. Rochester’s explanation of its hiring decisions has a “basis in fact.”

See Wallace, 442 F.3d at 1120.

3. Fire Chief Kapler’s description of Torgerson and Mundell as “unfit”

Torgerson and Mundell may also show pretext by “persuading the court that a

[prohibited] reason more likely motivated the employer.” Id.

City Councilmember Patrick Carr testified that Fire Chief Kapler said he did not

hire Torgerson and Mundell because he “found them unfit.” At his deposition, Fire

Chief Kapler explained his remark, distinguishing “fit” from “qualified.” The Court

states that “the district court credited Kapler's explanation of his use of the word

‘unfit,’” which “is not the only reasonable inference from the facts.” 12 Ante, at 22-23.

Nothing in the record suggests Fire Chief Kapler’s use of “unfit” was based on

national origin or gender. Minnesota law requires “public competitive examinations

12

The Court notes statistical evidence in support of its conclusion. Ante, at 23

n.10. “[S]tatistical evidence will rarely suffice to rebut an employer’s legitimate, non-

discriminatory reasons for a particular adverse employment action.” Bogren v.

Minnesota, 236 F.3d 399, 406 (8th Cir. 2000).

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to test the relative fitness of applicants.” Minn. Stat. § 420.07(2) (emphasis added).

“While we are required to make all reasonable inferences in favor of the nonmoving

party in considering summary judgment, we do so without resort to speculation.”

Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006). “Facially race-

neutral [or gender-neutral] statements, without more, do not demonstrate

[discriminatory] animus on the part of the speaker.” Id. See also Hannoon v. Fawn

Eng’g Corp., 324 F.3d 1041, 1047 (8th Cir. 2003) (“Because the comments regarding

body odor did not suggest any reference to race or national origin, we are unwilling

to hold such comments reasonably capable of supporting an inference of

discriminatory intent.”).

4. Other evidence

Although the Court does not specifically rely on it, other evidence the Court

references does not support an inference of discrimination, when read in context. See

Twymon, 462 F.3d at 934. Councilmember Carr testified that Fire Commissioner

John Withers – who was on the panel that interviewed Torgerson – said he

recommended a convicted felon for a firefighting position because he is “a big, strong

guy.” As Carr makes clear, this statement came in the context of a conversation about

a particular male candidate, not about other applicants.

Councilmember Carr also testified about an exchange with Fire Commissioner

Roger Field:

I said—the first question I asked [Field] was are you aware

of all the terms and conditions of the SAFER grant. And

then he said, “What do you mean?” And I said, “Well, they

stipulated you hire women and minorities.” And he said, “I

knew nothing of that.” He said, “Had I known, I would

have recommended that the City not take the grant.” He

-30-

said the City should never have taken the grant if that was

the stipulation.

As the district court noted, Carr’s description “of the SAFER grant failed to mention

the qualifying language ‘to the extent possible’ . . . . Testimony that Field

recommended against taking a grant that ‘stipulated’ the City hire women and

minorities, regardless of relative qualifications, is not evidence of discriminatory

animus.” As the district court concluded, “Field’s statement is unrelated to any

challenged step in the decisional process . . . .”

Torgerson and Mundell stress that when Fire Chief Kapler conducted the final

interviews of candidates from the top of the eligibility list, he looked only for “red

flags,” but when interviewing those at the bottom (them), he looked for “something

about [them] that would elevate them to the level of being better than the candidates

who were at the top of the list.” This cannot reasonably be construed as

discriminatory because, despite moving on to the fire-chief interview, Torgerson and

Mundell retained their ranks on the eligibility list. As the Court recognizes, “although

all candidates on the eligibility roster meet the minimum qualifications for the

firefighter position, those at the top of the list are recognized as more qualified for the

position than those at the bottom of the list.” Ante, at 4.

***

Torgerson and Mundell fail at step three of the McDonnell Douglas analysis:

they do not offer evidence from which a reasonable jury could conclude Rochester’s

reason for not hiring them was pretextual.

I would affirm the judgment of the district court in all respects, and I therefore

dissent in part.

______________________________

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