Torgerson v. City of Rochester

reservations had no court The district in this case. guidelines applying

about he was free to recognized judge

The with the “severely disagree[d]”

vary if he “in this instance found that but

guidelines to be and need relevant they’re quite

... Meschi- considered judge

honored.” niece, vol- his extensive his

no’s abuse of “disturbing” pornography,

ume of child of some of “terrifying” nature con- in chat-room bragging his

images, and sexually abusing his niece

versations about in his of children taking pictures These are on the bus.

neighborhood circumstances, and it aggravating

serious judge for the hardly unreasonable

was 3553(a) § weighing

emphasize them not overcome the Meschino has

factors. within-guidelines sen- that his

presumption reasonable.

tence is

Affirmed. TORGERSON; Jami

David

Mundell, Appellants, ROCHESTER, Appellee. OF

CITY 09-1131.

No. Appeals, States Court

United

Eighth Circuit. Oct.

Submitted: 1, 2011.

Filed: June

I. The Hiring A. Process City firefighters The hires Rochester state-statute-driven, using a civil-service process. In accordance with Minnesota 420.06, § Statute a Fire Civil Service Com- mission has “absolute and supervi- control employment sion” over the all officers in department. Fire The Commission consists of three appointed commissioners by Any Council. Commission ac- requires tion an vote affirmative least two commissioners. Minnesota Stat- § ute 420.07 directs the Commission to Lienemann, argued, Paul, Lyn Leslie St. adopt carry rules to out purposes. its MN, appellants. for provide “public competitive rules must for argued, Paul, Ytzen Beety, Patricia St. to test examinations the relative fitness of MN, appellee. 420.07(2). applicants.” § Minn.Stat. RILEY, Judge, Before Chief Commission’s According Rules, WOLLMAN, LOKEN, MURPHY, BYE, the hiring process begins when the MELLOY, SMITH, COLLOTON, posts vacancy, a and apply. candidates GRUENDER, BENTON, and (HR) City’s The Human depart- Resources SHEPHERD, Judges, Circuit En Banc. ment first determines whether an appli- cant application qualifications meets the BENTON, Circuit Judge. age, (citizenship, high-school diploma, basic Jaye Torgerson David Kay and Jami courses, firefighter Emergency and Medi- challenge Rochester, Mundell City the (EMT) status). cal Technician A candi- Minnesota’s decision not hire them as date process then faces a multi-phase be- firefighters. Torgerson, a Native Ameri fore appointment as a firefighter. Phase I can, disparate-treatment alleges discrimi process of the is a written “Standard Fire- origin. Mundell, nation based national fighter Entry-Level Examination” and female, a alleges disparate-treatment dis “Employment Inventory/Customer Service gender. They crimination based on claim Inventory,” together which count for 30 that the VII violated Title of the Civil percent of a candidate’s score. Those can- Rights §§ Act of 42 U.S.C. 2000e- highest didates with the 50 I Phase scores 2000e-17, and the Minnesota Human II, advance to Phase physical-agility the Rights (MHRA), Act Minn.Stat. test. percent It also counts for 30 of a (2006). §§ 363A.01-.41 Torgerson also candidate’s score. earn points Candidates sues § under 42 U.S.C. 1981. The district II Phase based on their times to granted court1 com- summary judgment to the plete City. panel reversed, requiring firefighter A course this court tasks. (8th Cir.2010), than Taking but more rehearing en six-and-one-half minutes banc granted. was failure, This court now is a disqualifying affirms. the candidate. Ericksen, 1. The Honorable Joan N. United sota. Judge States District for the District of Minne- Rules, a vacancy to the when physical-agility According the II passing

Those Phase III, occurs, anticipated or an interview is Fire Chief advance to Phase test request certify in- that the panel. panel The shall Commission three-person awith per names of for 40 of a candi- Council the percent counts terview eligible appointment. for As Minnesota sons Minnesota required score. date’s 420.07(7) § 197.455, requires § receive addi- Statute Commis veterans Statute (non-disabled standing “the names get certify veterans sion to three points tional appropriate any to fill highest veterans ten on the list points, and disabled five (“rule three”). 420.07 Thus, poten- vacancy” earn a Section veterans can points). (or 110) permit non- and the Rules do not re points, total of 105 while tial —but Mundell, veterans, up eligi are certification of to two quire like and —the “protected from each points. at ble candidates capped for which be group” disparity exists depositions through and Both their make-up Fire department tween counsel, do not Torgerson and Mundell action City’s goals. affirmative II, I or the veterans’ challenge Phases Native Americans and women are consid Therefore, only are details set out points. protected groups. expanded ered This a Fire to Phase III: One interviewer is as is in addition to the rule-of- certification Commissioner, HR one de- represents certification made rank three and is Fire de- represents and one partment, order. provides HR department partment. three, A HR questions. private By rule of the Commission set interview in- nine gives certify firm a class to the interviewers must candidates for seven For structing questions open positions. example, them how to ask Commis- first-, second-, certify must responses good are considered re- sion what scoring posi- for the sponses. The interviewers receive third-ranked candidates first Then, assuming re- rating appoints criteria use a candidate’s tion. the Council questions highest-ranked po- are sponses. The identical candidate each sition, by in the certify asked the same order the same Commission must the second-, third-, applicant. interviewer to each All three and for the fourth-ranked third-, fourth-, position; interviewers score a re- second the and panel candidate’s the question posi- to each interview on fifth-ranked candidates for third sponses tion; on, possible certifying and until the sev- ques- scale of to The ten so enth-, eighth-, be- and given tions are also to the candidates ninth-ranked candidates interview, by position. fore the written memo from for the seventh The Commission firm, may certify also private along protected-group the HR with a list of candi- in to candi- qualities questions the the relate to. dates addition the rule-of-three However, appointment, each dates. before from three scoring Based on the candidate, including any protected-group process of the and the veterans’ phases candidate, pass must one final stage. placed in rank points, each candidate is pass on The certified candidates must eligibility order an list. Commis- check, certify eligi- background an interview with the sion then votes whether to list, Chief, years. psychological All bility for two Fire medical which stands Rules, if a qualified According the list are for examinations. candidates on these, any of firefighter, those candidate fails Commis- position although qualified the next candidate quali- ranked are considered more sion considers higher City list. The eligibility on the Council fied. hiring decision, but makes the final accord- The “Grantee Responsibilities” include: Carr, “Grantees, seek, to ing possible, to Council Member Patrick the extent will recruit, appoint Council follows the Commission’s recom- members of racial and past, minority groups mendations. In the used an ethnic and women to in- women expanded applicant’s certification hire crease their ranks within the minority who firefighters department.” ranked (and top eligibility at the of the list thus hiring process The 2005 resulted in the ordinarily appointment). have no chance of certification of 48 candidates on the eligi- However, protected-group appli- even if a bility list.2 The list protect- included three interview, cant Fire advances to the Chief ed-group Torgerson, Mundell, candidates: original the candidate retains his or her and another not a party female to this rank on the list. eligibility Although all appeal. Torgerson ais of the member Lac candidates list meet the Superior Courte Oreilles Band of Lake qualifications firefighter position, for the Chippewa Indians of Wisconsin. At the top recognized those at the of the list are time his application, he was a volunteer qualified as more than those at the bottom. firefighter Wisconsin. had completed years three of college toward a Ordinarily, the Fire Chief interview is degree protection, in fire including comple- I, II, used to if determine Phases and III tion of Firefighter Inspector I and Fire I something missed is a reason not to courses, for which he held certifications. changes hire candidate. The Fire Chief He an was certified as by “EMT-Basic” the focus of the interview when interview- Registry National of Emergency Medi- ing lower-ranked by candidates advanced (NREMT) cal Technicians and the Minne- expanded them, certification. As to sota Emergency Regula- Medical Services interviews are used to see if the earlier Mundell, tory Board. at the time of phases her something missed that is a reason application, had part-time jobs, several in- to hire them instead of highest-ranked serving cluding “public as a education as- candidates. sistant” for the presenting fire-safety Challenged B. The Hirings programs to second- and fourth-graders (she Rochester hired hourly was for the In the fall of City sought position e-mailing after in- Fire Chief firefighters. hire seven Three these quiring about a volunteer position). She positions were funded a federal “Staff- had an degree associate business man- ing Adequate Emergency Fire and Re- agement and a diploma in intensive care (SAFER) sponse” grant. grant The out- paramedics from community a local col- purpose: lines its lege. certificate, She held a NREMT her The of the purpose grants SAFER is to license, EMT-Basic and for licenses com- grants volunteer, directly award to com- pleting Firefighter the I Firefighter and II bination, and departments career fire to courses. help departments the increase their ca- firefighters. Ultimately, dre of goal the Based on the physical-agili- written and (Phases is for SAFER grantees ty II) to enhance phases process their of the I and to ability attain 24-hour staffing and and points, Torgerson veterans’ ranked assuring 45th, thus their 46th, communities have and Mundell of 48 candidates. adequate protection from interview, fire and fire- Both panel advanced to the related hazards. Phase III. by Mundell was interviewed why 2. The record does not indicate than eligibility rather candidates were on the list. Hermann, it has a City.” told the Commission A. She Charles Battalion Chief Management “unique opportunity protected to consider County HR Risk Olmsted Till-Born, firefighter class for the seven and Commission- candidates” Analyst Joan meeting, in- the the Torgerson positions. Attending Powers. was Joseph R. er Till-Born, Hermann, Mayor “strongly encouraged” and agreed and by terviewed “seriously the Torgerson the Commission to consider” John Withers. Commissioner working questions the “while agree protected-group candidates and Mundell procedures.” Com- anticipated based within the established asked were what although all questions, that missioner Powers said possible the list of on quali- the list inappropriate. eligibility candidates on are questions of the none fied, carefully 37th and rank should be Torgerson ranked the order Mundell and interview, 41st, Powers added respectively, panel on the considered. Commissioner on inter- scoring opportunity III. with that he had the the Phase This —combined panel protect- Phases I and II and the view to “interview one the scores from their to others— and be- [Mundell]” awarded ed class candidates points veterans’ doing eligibility justice 40th on the final lieved “we would not be Mundell placed their to the recommending appointment 45th.3 Commis- Torgerson list and eligibility position the at this time” because he “would unanimously certified sion meeting its on not want to candidates who list of candidates recommend top eight the candi- 22. Of would not be successful.” Commissioner November list, received eligibility pro- on the seven Field the dates noted “limited number top six—a points, including the participating veterans’ tected class candidates” the impact rankings among curriculum, on substantial Firefighter “suggested the top candidates. allotting the consider the financial can- allowing protected resources for class David A. December Fire Chief On opportunities.” didates educational requested that for- Kapler the Commission eligibility from candidates list discussion, ward this Commission After 9, 2006, January he fill six vacancies. On certify unanimously agreed to (to replace a requested another candidate Council the rule-of-three candidates the total firefighter) bringing terminated appointments, rank for six order — vacancies seven. appointment, the rule-of-three seventh plus expanded an certification candidates January meeting, At a Commis- As a protected-group of three candidates. purpose of the SAFER sion discussed candidates, result, top plus nine and whether Commission should grant candidates, three faced protected-group protect- expand the certification to include stage: in-depth background the final an meeting, At the ed-group candidates. psychological investigation, medical City’s HR Director Linda Gilsrud noted examinations, and an interview with points “minimal in the total differences thus Fire and Mundell Chief. list.4 candidates” between stage for the seventh advanced to the final explained grant, the SAFER stat- Gilsrud retaining their 45th and position, while qualified its is to “ensure ing purpose that all rankings, respectively. 40th Because applicants are considered protected class eer- protected-group applicants three employment opportunities within the for top in the son and Mundell were not ranked The other candidate ranked 37th. 3. female any at time. candidates Although separated 25th, ten points of the 4. a total through Torger- 1st candidates ranked (the seventh), position applicants possessed,” tified for one and did not demon- one of could be hired. most them anything strate to make himself more what qualified already than his indi- score Kapler, the Fire Chief with assistance did Kapler cated. not Mun- recommend Chief, deputy Fire interviewed during dell because the interview she did through candidates ranked 9—all not demonstrate that equally she was or protected-group three can- males—and the qualified than better the candidates at the interviewing top- didates. When list, top eligibility that candidates, show she Kapler ranked looked for a qualified was “better than her test scores flag. Something up. “red that shows It may have At deposition, ... indicated.” his gut-level feeling might could be a that Kapler acknowledged February us a his give clue that there is concern about that interviewing pro- a candidate.” did give particular When memorandum not rea- candidates, son, tected-group Kapler reason, for objective looked or an for not recom- “something might that have been missed. mending them. quality Is there some or attribute this The deputy Fire Chiefs notes from the person brings that didn’t come out in the interview indicate Mundell not “a was wow, say, strong test we can this is a deputy standout.” The Fire Chiefs notes regardless candidate of their test scores.” Torgerson say “talker,” “nice,” on he awas Kapler initially decided not to recommend “odd,” (which deputy and a “BSer” not “possess Candidate because he did testified meant “I every- couldn’t believe Registration,” National EMT and Candi- said”). thing he deputy The Fire Chief up date because he did not show for his Torgerson concluded that also was not a interview or update his contact informa- “standout.” tion. Commission, with all three commis- Kapler requested then four additional present, Kapler’s sioners recom- discussed through candidates —candidates ranked 10 mendations on February Also 13—whom In February he interviewed. date, Kapler his withdrew recommenda- memorandum, Kapler made his recom- tions for two more candidates —Candidate mendations to the Commission. In addi- 2 because Kapler expect did not re- tion not recommending Candidates 3 sults his medical examination in time for 4, Kapler he stated that also not did hiring, and Candidate 5 because he did not recommend Candidate 10 because he “was his have NREMT certification on the date eligible not EMT National Registry sum, list was certified. In before the [eligibility] was list certified” candidates, top 13 ranked Kapler did Candidate because he did “not six, leaving only not recommend seven rec- maturity pre- demonstrate the level of (at ommended candidates least nine are paredness to be successful.” three”). needed for the Kapler “rule of Kapler’s said he did not memorandum requested four more candidates to inter-

recommend protected-group the three can- view, but the Commission tabled mat- didates because had not “demonstrat- ter. ed equally themselves to be or better qual- At February the end of the 27 meeting ified” than the individuals recommended. Commission, during of the “other busi- According Kapler’s notes from in- ness,” terview, two Kapler candidates that he found that had communication,” lacking did recommend for “awkward came NREMT across as “unsophisticated,” “difficulty meaning had certification the questioned commu- of nicating,” “lacked the characteristics other NREMT certification regis- “Current OR discussion, rule following Without the of had the appeared which try eligible,” three, City appointed the Council Candi- information from the Commission written through through and 5 dates 1 as discussing After the website. and on the firefighters Shortly on March 2006. information given the candi- conflicting the appointments, after the Council’s me- issue, dates, tabled the the Commission had reported dia that Candidate 3 been Fire from the de- requested clarification eight years convicted of vehicular homicide unanimously voted to and then partment, meeting An Council emergency before.6 3, 5, (collectively, and 10 candidates permit was called on March 29 to decide whether candidates”) to continue “registry-eligible appointments. to reconsider the Immedi- to process. According the in the selection ately the meeting, before Council Member director, City the decided that City’s HR with Carr had conversation Commission- quali- candidates were registry-eligible the allegedly er Withers who told Carr that was it there an fied because determined to the Commission wanted hire Candidate pro- or conflict information “ambiguity (the felon) “he was convicted because the the the about mean- vided to candidates” big, strong firefighter type,” absolute ing “registry eligible.” biga and that guy “he was he’d make a 15, Kapler On March recommended good firefighter.”7 meeting, At the Carr through 1 through City and 5 tried to discuss the had Candidates whether com- posi- grant. the The satisfy plied city the of three for seven with SAFER to rule attorney advised the Council that compli- Kapler changed he his tions.5 testified grant ance the with SAFER was not a registry-eligible the recommendation on topic emergency meeting. for the The “once Commis- [the candidates because grant. Council did not discuss SAFER opinion ruled in their these sion] City On the recommendation Ad- did the intent of stat- candidates meet ministrator, not to Council voted re- ... candidates requirements, ed these appointments, resulting consider the seven not qualified.” Kapler did men- now hiring through Candidates protected-group candidates or tion the through and 5 8. March through 13 in his Candidates meeting memorandum. At Commission response appoint- In calls about the to day, ments, Commissioners Withers investigated same Carr Council Member present to During and Powers voted City’s hiring process. finally as came investigation, the candidates recom- of his Carr Council course Kapler. required Fire grant Chief Commis- believe that the SAFER mended seek, recruit, at Roger present appoint was not wom- sioner Field minorities, although en he meeting. understood public why Kapler Act: that not indicate Criminal Rehabilitation em- 5. The record does ployers may disqualify job applicants changed Candidate 2 his recommendation on conviction, (the directly pending based on a unless it re- results medical evalua- one tion). position sought. challenge Appellants do not lates to the change. panel opinions slightly 7. The have different statement, quota- merges grant the actual Rules it discretion which The Commission’s Rochester, Torgerson City applicant an from the list tions. to remove crime," quotation guilty first above is applicant of a 603. The if "the has been answer, quota- initial and the second for "commission of a Carr's or to remove an officer "what Mr. his answer to words With- felony.” City's HR director testified to tion is 364.03, § ers policy said.” of Minnesota Statute city attorney and dis- genuine that the Commission vits show that there is no as issue meeting with him. At a council agreed any fact material and that the movant is the hirings, about three months after Carr judgment entitled to aas matter of law.” Kapler questioned Fire Chief about the 56(c)(2). Fed.R.Civ.P. The movant “bears hirings, grant, pro- and the SAFER the initial of responsibility informing the tected-group Torgerson candidates and motion,” of district court basis its said, Kapler Mundell. that Carr testified identify portions and must of “those [the them ... I “I interviewed and found them ... which it believes record] demonstrate unfit.” genuine the absence aof issue of material year further testified that about a Carr Catrett, Corp. fact.” Celotex v. 477 U.S. emergency meeting, after the he called 317, 323, 2548, 106 S.Ct. 91 L.Ed.2d 265 Field: Commissioner (1986). so, If the movant the non- does I question I said—the first asked [Field] respond by submitting movant must evi- all of you was are aware of the terms dentiary “specific materials that set out SAFER grant. conditions showing genuine facts is a there issue said, you And then do he what mean? 324, 2548, for trial.” at quot- Id. 106 S.Ct. said, well, they stipulated I you hire And 56(e)(2). ing Fed.R.Civ.P. “On a motion women I and minorities. And he said for summary judgment, ‘facts must be nothing knew of that. He had I said light viewed most favorable known, I would have recommended that nonmoving party only if genuine there is a City take grant. not He said the ” dispute as to those facts.’ Ricci v. DeS- grant should never taken have — U.S.-, tefano, 2658, 2677, 129 S.Ct. if that stipulation. was the (2009) quoting L.Ed.2d v. Scott Torgerson and Mundell filed discrimina- Harris, 380, 1769, 550 U.S. 127 S.Ct. charges tion Depart- with the Minnesota (2007)(internal 167 L.Ed.2d 686 quotations Rights Equal ment Human and the omitted). determinations, “Credibility Employment Opportunity Commission. weighing evidence, of the drawing and the MDHR The found that the evidence did legitimate inferences from the facts are not substantiate and Mundell’s functions, jury allegations, and charges. judge.” dismissed the those of a adopted The findings, Prods., EEOC the MDHR’s Reeves Sanderson Plumbing and also charges. Torger- Inc., dismissed the 133, 150, U.S. S.Ct. son and Mundell then sued in district (2000), L.Ed.2d 105 quoting Anderson v. court, disparate-treatment asserting claims Inc., Liberty 242, 255, Lobby, 477 U.S. discrimination, of national-origin sex (1986). S.Ct. L.Ed.2d The discrimination, respectively. nonmovant “must simply do more than for summary moved judgment, which the show there is metaphysical some district court granted. facts,” doubt as to the material and must come forward with “specific showing facts

II. a genuine there is issue for trial.” A. Matsushita Elec. Indus. v.Co. Zenith Ra- Corp., 586-87, dio 475 U.S. 106 S.Ct. This court reviews novo a grant de “ (1986). 89 L.Ed.2d 538 ‘Where the summary judgment. Wojewski Rapid record taken as a whole could not lead a City Reg’l 33.8, Hosp., (8th Cir.2006). rational trier fact to find for non- Summary judgment is moving “if proper party, genuine there is pleadings, discovery no issue for ” file, any Ricci, disclosure materials on affida- trial.’ quoting S.Ct.

1043 action,” Matsushita, 587, “every for state designed panel 106 S.Ct. is 475 U.S. at contrary to the are unauthorized ments not be There is no and should followed. one- and Mundell devote exception” ap case to the “discrimination argument written to of their fourth summary judgment, of which is a plication emphasize They of review. standard tool to whether pretrial useful determine in em- panel opinions statements case, any including alleging one discrimi cases, summary ployment discrimination nation, County trial. merits a Fercello v. “sparingly” or should “seldom” judgment (8th cases, only 1069, in “very Ramsey, close” 1077 Cir. granted, be of caution,” being “particularly or after 2010), “with citing Operations, Wallace v. DTG although deferential” 1112, Cir.2006), 1118 nonmovant — appear that these statements often noting Berg Corp., v. 169 quoting and Norand statements, contradictory and near (8th Cir.1999). 1140, 1144 F.3d summary judg- panels frequently affirm B. to appendix cases in the ments. See listed opinion. Compiling percentage this Torgerson and Mundell make dis (and judge the district here cases where parate-treatment claims under Title VII district) in the sum- judges grant other MHRA, alleging and the discrimination in employment discrimina- mary judgment Torgerson’s origin based on national cases, Torgerson request Mundell tion sex. Title it “an Mundell’s VII makes on a standard for separate reversal based employment an practice unlawful for em these cases. ... any ... to fail or to hire ployer refuse asserting a panel The statements ... individual’s individual because of such summary standard review for different origin.” ... sex ... or national 42 U.S.C. employment discrimination judgment 2000e-2(a)(1). The § MHRA states that contrary Supreme to Court cases are an employment practice “it is an unfair Court has reiterated precedent. employer, origin because of ... national should discrimi courts not “treat district ... ... sex refuse to hire” [or] differently from other ultimate nation against with re person “discriminate Reeves, of fact.” 530 U.S. questions hiring....” Minn.Stat. spect 2097, 148, Mary’s 120 S.Ct. St. quoting 363A.08, analysis § subd. 2. The same Hicks, 502, 524, v. Honor Ctr. 509 U.S. Title VII applies to both MHRA and 2742, (1993), 125 L.Ed.2d 407 113 S.Ct. Kasper v. Mut. Ins. claims. See Federated Aikens, Bd. USPS Governors v. quoting Co., 496, (8th Cir.2005); Bohr 716, 1478, 103 S.Ct. 460 U.S. (Minn. Univ., Capella 788 N.W.2d (1983). case, In a landmark L.Ed.2d 2010). the Court wrote: organize argument Both sides their Summary judgment procedure prop- is terms of the framework in Griffith proce- not as erly regarded a disfavored Moines, Des shortcut, integral but as an dural rather Cir.2004). Torgerson quote Mundell whole, Federal as a part of the Rules from following passage almost all of the designed just, which are “to secure case: inexpensive speedy and determination Griffith every action.” long and followed recognized We have principle in McDonnell applying this 106 S.Ct. Corp., U.S. at Celotex Green, 1). [Corp. v. Douglas U.S. Because (quoting Fed.R.Civ.P. 802-03, L.Ed.2d 668 is 93 S.Ct. summary judgment not disfavored (1973) said, well, holding plaintiff may you that a stipulated hire wom- ] defendant’s motion for sum- survive the he en and minorities. And said I knew ways. in mary judgment one of two known, nothing of that. had I He said I of proof “direct evidence” by first is City would have recommended that the Direct evidence this discrimination. grant. take the He said not the not the circum- context is converse of grant should never have if taken evidence, many to as- stantial as seem stipulation. that was the Rather, direct is evi- sume. evidence First, it is doubtful that Commissioner “showing specific a dence link between Field a hirings was decisionmaker alleged discriminatory animus and Regions themselves. See Elam v. Fin. decision, challenged to sufficient (8th 873, Cir.2010) 601 Corp., F.3d support finding by fact reasonable (“statements by nondecisionmakers” are an illegitimate finder that actu- criterion evidence). not direct He was absent when ally employment motivated” adverse other the two commissioners voted to send action. Thomas v. First Bank Nat’l hired; to the Council the candidates did (8th Cir.1997). Wynne, 111 F.3d Mundell; not interview or did Thus, “direct” refers to the causal not five of sign the “recommendation” strength proof, not it whether is (including Torgerson’s forms and Mun- plaintiff “circumstantial” evidence. A dell’s); and according to Council Member (direct) strong illegal with evidence that Carr, “out during was of town all of this” discrimination employer’s motivated the process. conclusion of the hiring See adverse action does not need the three- McKay Dep’t Transp., U.S. part Douglas analysis get McDonnell (Federal Cir.2003) office regardless jury, of whether his official, who manager selecting was not strong evidence is But if circumstantial. panel, even on interview was not a “deci- plaintiff lacks clearly evidence that sionmaker,” any so ageist comments were points presence illegal of an mo- evidence). stray remarks and not direct tive, must summary judgment he avoid no There is evidence Commissioner Field by creating requisite inference of decisionmaker, influenced ultimate unlawful through discrimination Council, or that it deferred to him in Douglas McDonnell analysis, including hiring its decision. County See Arraleh v. See, sufficient evidence of pretext. e.g., Ramsey, Inc., Anheuser-Busch, Cir. Harvey v. 38 of 2006) (remarks (8th Cir.1994). by county employee F.3d with hiring authority no were direct evi- C. dence because record no had evidence the employee hiring influenced the decision- Torgerson and Mundell claim two Dustrol, maker); Mohr v. Commissioners made statements are cf. (8th Cir.2002), abrogated direct evidence other discrimination. grounds by Palace, Costa, Desert Inc. v. 90, 95, 539 U.S. 123 S.Ct. (2003) (comments by supervi- L.Ed.2d Council Member Carr testified that “officially responsible” he called sor not Roger hiring Commissioner Field about a year hirings: after the supervisor direct evidence where played “pivotal hiring role” in and

I first offi- question said—the I [Field] asked decision). hiring was cials deferred to his you are aware of all the terms and However, conditions of the grant. SAFER And Commissioner Field did vote to then he what you list, said do And I certify signed mean? the ranked interest, forms, by employer, employee, 15) shared (of participated recommendation consumer, pro is efficient and trustwor meetings during the in Commission through fair cess, thy workmanship were done the name assured many acts Commissioners, him. including per employment three ... neutral of all (statements Mohr, at 641 Douglas, See decisions.” McDonnell sonnel hiring decision “closely VII, involved” in those Title supra, [93 1817]. at 801 S.Ct. evidence); v. Liberal EEOC may be direct however, does not demand that an em (8th Dist, 920, 924 R-II Sch. to mi give preferential treatment ployer Cir.2002) statements (discussing cases with § 42 2000e- norities or women. U.S.C. nondecisionmakers). by “closely involved” Weber, 2(j). 443 See Steelworkers —Hosp., Proctor generally Staub v. See 2721, 193, 205-06 S.Ct. 61 [99 U.S. 1186, 1194, -, 131 S.Ct. U.S. (1979). The statute was 480] L.Ed.2d (2011)(if a non-decisionmaker L.Ed.2d to “diminish traditional not intended by a discrimina an act motivated performs Id., at 207 management prerogatives.” cause, to and that is intended tory bias 2721], require It not S.Ct. does [99 cause, an adverse proximately that does employment to restructure his employer action, has employer then the employment to maximize the number of practices liability). cat’s-paw minorities and women hired. Furnco Waters, Corp. v. 438 U.S. Construction

Second, assuming Commissioner 2943, 57 L.Ed.2d [98 577-78 S.Ct. decisionmaker, Torgerson was a Field (1978). 957] extrapolate gender to Mundell seek a statement national-origin animus from Burdine, Dep’t Cmty. Texas Affairs of women and mandatory hiring opposing 248, 259, 1089, 67 101 S.Ct. 450 U.S. opinion Field’s Commissioner minorities. (1981). Field’s L.Ed.2d 207 Commissioner discriminatory ani a cannot demonstrate of discrim- statement is not direct evidence com explicitly Congress mus because ination. be inter Title shall not

mands that VII 2. treatment require preferential preted and Mundell cite the testimo- ac origin national of sex or because just be- Member Carr ny imbalance in the number Council count of an compared meeting called to re- employed, emergency those fore the percent of felon, in the percent number or of a convicted hiring the relevant consider the 2000e-2(j). § he community. See U.S.C. told Carr John Withers Commissioner Ricci, (disap at 2675 also 129 S.Ct. for a See the convicted felon had recommended system” and the quota “a de proving big “he was a firefighting position because facto results with discarding firefighter test firefight- good that he’d make a guy and obtaining employer’s pre intent of er.” balance, purpose because the ferred racial facially is and con This comment hiring on the promote VII “is to of Title Di origin. to national textually neutral as rather than on job qualifications, basis of does not include statements rect evidence Griggs (quoting race or color” the basis of facially and that are decisionmakers Co., 401 U.S. v. Duke Power Twymon v. contextually neutral. See (1971))). As 28 L.Ed.2d S.Ct. Co., 925, 934 Fargo & Wells put it: Supreme Court Cir.2006). all discrimination prohibits Title VII decisionmaker, in by a race, sex, A remark upon employment based of sex discrimi- broad, be direct evidence overriding order to “The origin. national nation, link D. specific show a between a must discriminatory adverse bias and the em Douglas the McDonnell Under action, to support sufficient a ployment framework, Torgerson and Mundell must finding by a reasonable fact-finder prima first establish facie case of dis See McCul bias motivated action. crimination. U.S. at S.Ct. Scis., Ark. Med. lough v. Univ. of context, hiring applicant In an Cir.2009); F.3d Sim 860-61 cf. must show: Eight, New Pub. Dist. No. mons v. Sch. (1) (2) class; in a protected she she is (8th Cir.2001) 1210, 1213, (3) position; for an qualified open was (school president’s board statements that (4) position; she was denied can’t “a woman handle administra [the filled with [employer] position per- job” employee and that the was “a tor’s] son in the same protected class. job” woman in a man’s direct are evidence Special County Dixon v. Pulaski Sch. discrimination); of sex v. South Stacks (8th Dist., 862, Cir.2009). 578 F.3d 867-68 Inc., Pages, western Bell Yellow 27 F.3d of production The burden then shifts to Cir.1994) (8th 1316, 1318, (supervi the to “articulate a legitimate, nondis comment sor’s that in sales “women criminatory hiring” reason for not them. thing” happen company to worst Id. at “[T]he 868. ultimate burden [then] discrimination). is direct of evidence sex [Torgerson pro falls on to Mundell] says, “big guy” Carr As state duce genu evidence sufficient to create a ment a came context of conversation ine issue of material fact regarding wheth just specific about a candidate before an City’s] proffered er nondiscriminatory [the emergency meeting Council that focused justifications are pretext mere for inten reconsidering appointment. his The Pope tional discrimination.” See ESA “big guy” statement not does relate to (8th Servs., Inc., 1001, Cir. Mundell, to of appli or female abilities 2005). Torgerson and Mundell’s burden to cants, thus is not direct evidence of pretext “merges show with the ultimate discrimination. v. Capital See Kerns persuading [they burden of the court that Inc., 1011, 1017-18 (8th Graphics, of the victim intentional discrimina were] Cir.1999) (statements that do not relate to Burdine, 256, tion.” 450 U.S. at 101 S.Ct. herself, plaintiff or to abilities of pretext, of coupled Proof awith employees, female direct are not evidence case, may strong prima facie suffice to gender discrimination); White v. Co Wallace, question create a fact. triable Auth., lumbus Metro. Hous. Reeves, at 1120 n. citing F.3d (6th Cir.2005) (post-selection 238-39 state 148, 120 U.S. at S.Ct. 2097. ment, response that hir inquiry, retain, times, and Mundell at all the ulti ing committee wanted a “grass guy” roots proof mate persuasion burden and that the selectee interviewed well held against discriminated them. Id. gender direct evidence of discrimina at 1119. isolated, ambiguous, tion as it fairly was innocuous, E. a description of the selec tee). City argues The that Torger

Torgerson and do not present prima Mundell son and Mundell did not a establish direct gender evidence of facie national-origin they case because were not the best against qualified discrimination violation firefighter positions. them for the Title City emphasizes VII. ranked lower on Torgerson and Mundell believe substantially list due to their City’s hiring for not that the stated reason hiring of the phases in all scores lower circuit, however, There pretext has them is discrimination. This process. ways plaintiff may a dem that a are at least two rejected proposition squarely regard of fact qualifica question onstrate a material prove her relative must plaintiff Wallace, 442 F.3d at 1120. A ing pretext. facie burden. prima meet her tions to Dixon, may employer’s show that the ex citing plaintiff Turner v. 578 F.3d at Techs., L.L.C., “unworthy of credence ... planation is Mfg. Fed. & Honeywell (8th Cir.2003), in fact.” Id. Alter citing because it has no basis 721-22 F.3d Anheuser-Busch, may pretext “by natively, plaintiff a show Hawkins Cir.1983). [prohibited] a persuading See Hase the court that F.2d 813-14 Sec., likely employ 972 reason more motivated the Employment Div. v. Missouri Cir.1992) (where showing Id. Either route amounts to 896 n. er.” reason, top prohibited ten rather than the considering was agency state reason, actually motivat personnel employer’s a list from the stated candidates on employer’s inclusion on list action. Id. plaintiffs ed department, qualifications sufficient establish showed Torgerson and Mundell believe several case). facie “The burden of estab prima City’s that the stated rea- instances show prima disparate facie case of lishing (1) pretext son was for discrimination: Burdine, is not onerous.” 450 treatment to the qualifications compared their hired 253, 101 undisput It is at S.Ct. 1089. U.S. (2) candidates; subjective the nature of Mundell, by making Torgerson and ed part hiring process, specifically of the list, qualified for the (3) interviews; panel and Fire Chief by were filled firefighter positions, which in Kapler different standards used They have American males. non-Native (4) interviews; Kapler’s Fire Chief refer- facie case. prima established a “unfit”; Torgerson Mundell as ence to and (5) hiring of an additional five The burden then shifts to challenged year males a after the. 2005- a nondis City. “The burden to articulate (1) (2) hirings. Categories ap- 2006 onerous, criminatory justification is not attempts City’s to show that the pear to be not be demon explanation and the need fact, reason has no basis while stated preponderance evi strated (5) (3), (4), appear to be categories Dep’t Mo. Floyd dence.” v. State of attempts demonstrating an actual dis- Servs., Servs., Family 188 Soc. Div. of criminatory motivation. Cir.1999). 936 consistently stat burden with its met this Torgerson and hiring

ed reason for not Mundell: Torgerson and Mundell—who repeatedly that be- have the burden —assert Appellants did not hire

[T]he qualified” than they “objectively are better significantly both lower cause scored This is It also did not the hired candidates. assertion than other candidates. At by their own admissions. their Appellants their interviews refuted hire because Torgerson both and Mundell only depositions, confirmed what Kapler with Chief challenging were not Ap- both stated that testing phase had shown: about the written examination lacking qualifications “anything” as pellants were (Phase I) test physical-agility or compared higher ranking candi- (Phase II). Torgerson At time have no dates. 1048 challenged ing rankings

and Mundell the award of vet- undisputed scores § erans’ 42 points. See U.S.C. 2000e-ll the rest of process Torgerson — (“Nothing 45th, 46th, contained in [Title VII] shall be ranks and Mundell of 48 candi- federal, repeal modify any construed to or dates.8 As clear from Table no reason- state, territorial, creating spe- jury or local law able could find that veterans.”) rights preference cial Mundell qualified were better than the Setting aside the oral interview—and bas- hired candidates.

TABLE 1 Final Undisputed Eligibility Eligibility Final Undisputed Candidate Points Rank Points Rank I -Phase written exam I -Phase written exam physical agility -Phase II physical agility -Phase II points -Veterans’ points -Veterans’ 1 60.95 2 91.826 90.984 1 61.60 2 1 2 3 4 59.15 56.00 3 5 90.310 3 45 40 Mundell Torgerson 7 5 o o 6 50.25 50.85 55.55 54.75 55.85 56.45 o o 7(tie) 9(tie) 45 13 o 4 o o o 87.766 73.826 88.022 88.930 88.066 76.658 90.064 o o 40 45 7 4 o o 5 6 get undisputed points rank, To eligibilitypoints the and subtract oral eligibility final points from 209). (Appellants’appendix Eligibility Final Points

- Eligibility (Phase III) Oral Points Undisputed Eligibility Points (Phase I, II, Veterans’points) Phase City The consistently has main comparative analysis of qualifications tained that the selected candidates were is relevant to determine whether there is qualified more Torgerson than and Mun- reason to employer’s disbelieve the prof- dell. “Where ... employer contends fered reason employment for its decision.” that the selected candidate was qual Airlines, more Chock v. Northwest 113 ified for position (8th plaintiff, 861, Cir.1997). than the a F.3d 864 panel scores, 8. The opinions 1, undisputed are inaccurate because Torger- set out in Table rankings Torgerson discussed 41st anywhere son and Mundell do not rank near there — rankings Mundell only 46th—are the for (and applicants the hired especially the veter- Compare Phase Torgerson City II. v. Roch- candidates, 8). an including of candidates 6 and ester, 590, 11, Appel- 605 F.3d at 602 n. with 596, Compare 605 F.3d at 602 n. 11. 17, 94, appendix lants’ 209. Based on their Co., pretext, Lidge-Myrill also v. Deere & support finding See

“[T]o (8th Cir.1995) 1308, (“Although must show that F.3d applicant] [the Kincaid qualified applicant.” employee] possess experience a less does hired [an (8th 799, Omaha, other qualities v. and some essential Cir.2004) (emphasis original). in the position, does not for success this stan approved has similar Supreme Court an to raise inference that em [the suffice Ty Ash v. from other circuits. See dards ployer’s] giving stated rationale for 457-58, Foods, Inc., son U.S. pretextual”); to another is Pierce position (2006) (per 163 L.Ed.2d 1053 S.Ct. Cir.1988) Marsh, (8th (1) curiam) Cooper cases: (approving three (“The of comparable quali mere existence Co., v. Southern two ... fications between alone applicants Cir.2004) (“disparities qualifications an ... does not raise inference of discrimi significance weight must be of such nation.”). exercise person, in the that no reasonable Here, Torgerson and appeared Mundell have chosen judgment, could impartial list, on the ranked far below the plaintiff selected over the the candidate best, they candidates. At have “rel- hired (internal quotation job question”) atively qualifications” similar to some (2) omitted); N. v. Fairbanks marks Road cases, As hired candidates. clear from the Dist., Sch. Borough Star “relatively qualifications” similar do not Cir.2003) evidence (qualifications pre- create a material issue of fact as to may pretext alone establish standing text. plaintiffs qualifications are where appli “clearly superior” to the selected (3) and, cants); Hosp. Aka Washington Torgerson and Mundell attack the (D.C.Cir.1998) Ctr., 156 F.3d by three-person III Phase interviews — banc) (the (en pretext may factfinder infer subjec the Fire panel Chief—as so have employer if “a reasonable would City’s ranking tive as to show that the better plaintiff significantly found the be has no basis in candidates fact.9 job”)). for the qualified Employers to com are entitled The best that applicants’ performance during inter pare have rela Mundell can assert is that Trs., Tyler views. Univ. Ark. Bd. of of “If tively qualifications. similar the com (8th Cir.2011). 980, 989 628 F.3d Where only that was plaintiff 'reveals parison exclusively not on employer rely does as similarly qualified qualified or not as criteria, subjective objective but also candidate,’ then no inference the selected education, subjec criteria and the use of arise.” Win of ... discrimination would does to an give tive considerations not rise Dist., Gage County 528 F.3d gate v. Sch. Wingate, inference of discrimination. (8th Cir.2008), quoting Cham employees at 1080. If are evaluated Co., F.3d Prop. Ins. bers v. Metro. & Cas. (8th Cir.2003) objective performance by a on an scale quali “Similar F.3d subjectivity uniformly applied process, ... “not fications” do raise an inference Chock, components at 864. cannot in and of itself of some discrimination.” answered, flatly probably any on the dell “No.” While she ranked waived attack 9. Mundell (at (undisputed other nondis- three-person Asked 46th of 48 on the Phase III interview. criminatory) parts anything process, of the she ranked deposition) "Was there her there —is interview, panel making final you are on the her process the oral that 37th about interview ranking 40th. challenging part your lawsuit?” Mun- as prove pretext discriminatory qualified or intent. more than what his already score Co., (The Montgomery Elliott v. Ward & 967 indicated. deputy Chiefs notes also (8th Cir.1992). 1262-63 View- record that Torgerson poorly.) interviewed favorably to ing Torgerson the evidence The Fire Chief did not recommend Mun- Mundell, if they this court asks have dell because during the interview she did genuine identified a issue of material fact not demonstrate equally that she was or degree subjectivity whether the renders qualified better than the candidates at the City’s pretextual. stated reason to be list, top of the that show she was qualified “better than emphasize and Mundell her test scores (Commissioner may significance panel of the have indicated.” interviews as Pow- scores, percent range of their and the wide ers’s assessment of panel Mundell’s inter- among view, interview scores candidates. recorded in the min- Commission’s They stress that the Fire Chief interview utes, conclusions.) matches the Fire Chiefs fail, essentially They however, is pass/fail. The interviewers here were “able to ex- identify any evidence that the interviews plain, in clear reasonably specific discriminatory. The Phase III inter- terms, their scoring reasons for [Torger- views were conducted as a uniformly ap- son and lower than Mundell] the [hired] plied process objective using perform- an UE, candidates.” See Brooks v. Ameren objective ance scale and criteria. Each Cir.2003). panel interviewer, an consisted of HR Torgerson and identify Mundell Commissioner, department and a Fire rep- no evidence that discrimination took resentative. The interviewers received a place. Their opinions own they questions. list of HR-prepared private A should have higher received interview HR firm instructed them how to ask and “simply scores are irrelevant” it as is the score responses by objective criteria. employer’s perception relevant, that is Each applicant was asked the ques- same the applicants’ “subjective tions in evaluation” the same order same inter- their own received, performance.” viewer. “relative applicants Id. In ad- fact, vance, they potential questions, only list of ten assert “po there was and a written memo from the HR firm tential” for discrimination in the inter identifying qualities at issue. Even views. presence “[T]he of subjectivity in Torgerson and agree Mundell employee evaluations is not a itself questions asked were what anticipat- grounds for challenging those evaluations ed based on possible questions, the list of discriminatory.” as Wittenburg v. Am. questions and that none of the were inap- Express Advisors, Inc., Fin. propriate. (8th Cir.2006). To summary defeat judgment, Torgerson and Mundell must expanded certification,

Due to both Tor- produce sufficient evidence from which a gerson and Mundell advanced to the Fire reasonable factfinder could infer discrimi Chief interview. The Fire Chiefs notes nation. See Burkhart v. Am. Railcar In from the interview demonstrate a basis in dus., Inc., 603 F.3d fact for 473-74 City’s Cir. stated reason not to hire 2010); Pierce, (In them. 859 F.2d at The Chief 603-04 civ found that Torgerson hiring had il-service communication,” “awkward from qualified ranked came “unsophisticated,” across as candidates on a had list based on a “difficulty combina communicating,” “lacked tion of subjective the characteris- factors: “Even if these tics applicants possessed,” other and did reasons personal [“evaluation based on not anything demonstrate to make himself observation of the could candidates”] be equal, a re because of our desire to rejected credibility grounds, such attract would not jection of that evidence add protected and hire class. showing pre lack of a anything to the rational No trier of fact could find this Here, by applicant].”). text [the against Torgerson discriminated and Mun- hiring process was more sub some of the times, undisputed dell. It is that at all lack

jective anything does not add they eligibility retained their ranks on the showing pretext by Torgerson and list, by their own admissions Foods, McCullough See v. Real Mundell. ranks, undisputed at top those were (8th Cir.1998) qualified more than those at the bottom. “extremely subjective” an (requiring both disparate While instances of treatment can substantially “a employer’s process and support pretext, Torgerson a claim of applicant in order to re qualified” better prove Mundell have the burden to case, summary judgment). In this verse they top applicants and the “similarly jury pretext not infer a reasonable could in all respects” “rigor- situated relevant —a Compare absence of evidence. from the pretext stage. ous” standard See Georgia-Pacific Corp., Gentry King Hardesty, (“In (8th Cir.2001) light of the Cir.2008). facts, light In of the undisputed question nature of the interview limited jury no reasonable that Torger- could find multi-component and the selection ing similarly son and Mundell were situated in only process which the interview was [“of respects all relevant to the hired candi- in a candidate’s score part”], one Thus, jury dates. no reasonable could find reasonably portion could not be terview the different Fire-Chief-interview ulti conclusive of the candidate’s deemed pretext standards demonstrate for dis- ranking by panel.”). mate crimination. objections to Torgerson and Mundell’s hiring process unpersuasive. are 4. hiring decisions City’s explanation its Council Member Carr testified Wallace, fact.” has “basis in See meeting that at a council about three at 1120. challenged hirings, months after the he questioned Kapler Fire Chief when he sought firefighters. to hire more Carr may Torgerson and Mundell also brought up hirings, the recent the SAFER the court pretext “persuading show grant, protected-group and the candidates likely [prohibited] that a reason more mo Torgerson and Mundell. Carr testified: employer.” tivated the Id. I [Kapler] And he said interviewed Torgerson and Mundell stress differ- them, quotes, and these are his exact he Kapler ent standards Fire Chief used I unfit. said found them the final interviews of candidates. For deposition, Kapler At his three times de- list, top those at the of the he “unfit,” using thought nied the word flag,” looked for a “red a reason to hire probably he commented that were not those at interviewing them. When qualified top he looked for better than the candidates. bottom—them—he testified counsel, said, them: by opposing Kapler a reason to hire Pressed them,” anything “I unfit about don’t see something about these candi- Is there “they’re people.” and not unfit as Asked that them to the dates would elevate “unfit,” why say he hesitated to “fit” or than the candidates being level of better top Kapler at the of the list. Or at least even stated: Well, depends hirings, except they I it on what the guess were based on To us it has a specific word “fit” means. 2005-2006, the same list as in duty type connotation. A fitness for and that the pro Commission certified no evaluation, mental, emotional, physical, tected-group applicants in 2007. Because part person’s duty. all of a fitness for is no there is evidence that the 2007 hires They I use the word fit. So that’s how similarly were in situated all relevant re they qualified on our list as are are— Mundell, spects Torgerson to and the 2007 candidates, they’re yes, qualified so to hirings proof add no additional of discrimi firefighters. be disparate-treatment nation this ease. purposes summary judgment, For Sys. See McClure v. Career Corp., Dev. testimony this credits Carr’s (8th Cir.2006) Court n. 2 F.3d hirings, three months after Fire Chief later, (person years hired over three with said, “I Kapler found them unfit.” See record, no similarly other facts was not Curtner, Chism 982 n. in all respects situated relevant (8th Cir.2010). favorably them, Viewed to plaintiff). Torgerson and Mundell demonstrate an that, by Kapler quote admission to their 6. brief, “they mentally physical- were not In they terms the framework present,

ly duty, fit for though they even had Torgerson and Mundell fail at step three passed required physical agility test of the McDonnell Douglas analysis: they City’s background and the check.” identify do not evidence from which a rea- Torgerson and Mundell have sonable trier of fact could conclude that dispute, a disputed identified factual but a City’s hiring reason for not them was summary fact alone will not defeat judg pretextual. any perspective, From on the ment, rather a genuine there must be issue whole, record as a Torgerson Mun- Liberty Lobby, of material fact. 477 U.S. disparate-treatment dell’s claims fail the 247-48, material, at 106 S.Ct. 2505. To be inquiry summary essential judgment: a fact “must affect the outcome of the suit the evidence here is so one-sided that it under governing law.” Id. at present does not disagreement sufficient S.Ct. 2505. The dispute as to what Kapler require to submission to jury. See Lib- said to Carr is not Everyone material. erty Lobby, 251-52, U.S. 106 S.Ct. Torgerson, Mundell, involved this case— 2505. officials, all except Kapler (according once Carr) agreed — III. qualified to be firefighters. Kapler’s claims the vio statement, unfit,” “I found them is not § lated by discriminating U.S.C. case, material to the outcome of this against him “on the basis of his national preclude thus does not summary judg origin.” protects Section 1981 “identifi ment. persons classes of subjected

able who are to intentional solely discrimination because ancestry of their or ethnic characteristics.” Torgerson and Mundell claim that St. Francis v. Al-Khazraji, Coll. 481 U.S. City’s hiring non-protected- of five 604, 613, (a 107 S.Ct. group males in L.Ed.2d 582 August year (1987). half For if challenged example, after the an individual 2005-2006 hir is ings) is pretext. “subjected evidence of The record intentional discrimination has almost no evidence about the 2007 based on the fact that he was born an

1053 it, Arab, solely urge place plaintiffs apply rather than on the this court to ... he will fail origin of his have their claims under that framework. [then] nation - Ante, § Id. Sec- made out a case under 1981.” at 1043 45. Whether the en banc tion 1981 does not authorize discrimination court should adhere to and its Griffith origin. Zar v. claims based on national inquiry plaintiff pre into whether a has Psychologists, Exam’rs S.D. Bd. sented “direct evidence” of discrimination of of (8th Cir.1992) (“This 459, claim summary-judgment in Title VII cases after upon origin based national discrimination Supreme Court’s decision Desert claim.”). §a is insufficient to state Palace, Costa, 90, Inc. v. 539 U.S. 2148, (2003), S.Ct. L.Ed.2d 84 is’ not Torgerson claim contends his presented for decision. Nor does this case status, which is based on Native American require us to confusion that address has may treated as a race claim and a be both arisen from a apply efforts to “direct evi national-origin claim. See Dawavendewa dence” standard. Compare, e.g., Griffith, Project Agric. Improvement v. Salt River at (explaining 387 F.3d that “circum Dist., n. 4 & Power may stantial evidence” constitute “direct Cir.1998) (a claim of discrimination evidence”) Lutz, and Bakhtiari v. may on Native-American status be based (8th Cir.2007) 1132, 1135-36 & (opin n. 3 race). But a claim based race claim J.) Beam, (applying ion of analy Griffith’s based on Native-American status must be “evidence, sis direct or circumstantial” claim, Torgerson stated as a race which may constitute “direct evidence” of dis states, Torgerson’s complaint failed to do. crimination, while characterizing Griffith’s against “Defendant has discriminated [] “possibly definition of “direct evidence” as employ Plaintiff the formation of an circuit”) unique one to this with id. at ment contract on the basis his national J., (opinion Shepherd, joined by 1138-39 § origin, in violation of 42 1981.” U.S.C. J.) Murphy, (disagreeing that “circumstan added). At time (Emphasis no did he tial part evidence” is of the “direct evi complaint move to amend his to include analysis Griffith). gen dence” under See Torgerson race discrimination. testified in Palace, erally Desert U.S. deposition that he believes he was dis (explaining S.Ct. 2148 that Title VII re against criminated because of his national quires plaintiff prove his case “using origin, City’s and until the motion for sum evidence”) (inter direct or circumstantial mary judgment, never referred to race in omitted); quotation nal v. FBL Gross Fin. any court documents. Because — Servs., Inc., U.S.-, 129 S.Ct. alleges against he was discriminated based (2009) (Stevens, 2357 n. 174 L.Ed.2d 119 race, § origin, on national his (“While J., dissenting) Justice O’Connor claim fails. affirmed. v judgment of the ^{[*] [*] [*]} district ^[*] court ^[*] is ert ‘direct did not define dence with circumstantial evidence in [Des Palace evidence,’ ].”); precisely Trans World we contrasted such evi what she meant Airlines, Inc. Thurston, Ill, 122, COLLOTON, 469 U.S. 105 S.Ct. Judge, concurring. Circuit (“The (1985) 83 L.Ed.2d 523 McDon opinion I concur in the of the court on Douglas inapplicable nell test is where the merely understanding opinion that the plaintiff presents direct evidence of dis given precedent takes as a the circuit crimination.”). Moines, Des Griffith Cir.2004), analytical summary-judgment that the rec- and the Given therein, fully developed framework described because the ord in this case was court, moreover, cases, it unnecessary employment district is discrimination see plaintiffs to consider whether the met a supra fitting Part II.A. It is that “direct evidence” standard or whether language of our match cases the law. they step each of the burden- satisfied said, that, That forget we should never in shifting framework described McDon- summary judgment stage, [a]t Green, 792, Douglas Corp. nell v. U.S. evidence, court weigh should not 802-04, 1817, 36 L.Ed.2d S.Ct. determinations, credibility make or at- (1973). only This court need decide tempt to determine the truth the mat- whether, whole, on a the record as there is Liberty ter. v. Lobby [Anderson genuine a issue for trial on the ultimate 242, 249, 2505, 2510, 477 U.S. 106 S.Ct. question of discrimination vel non. Riser (1986)]. Rather, L.Ed.2d 817, Target Corp., v. 458 F.3d 820-21 court’s function tois determine whether Cir.2006); Ready Johnson v. Mixed Con- dispute genu- about material fact is Co., 806, Cir.2005); crete 424 F.3d ine, is, that whether a jury reasonable Leavitt, 405, George v. 411-12 could return a nonmoving verdict for the (D.C.Cir.2005); see U.S. Postal Serv. Bd. party 248, based on the evidence. Id. at Aikens, 711, 715, Governors 460 U.S. 106 S.Ct. at 2510. The evidence of the 1478, (1983). 103 S.Ct. 75 L.Ed.2d 403 believed, non-movant is to be and all For the reasons stated in opinion justifiable are to be drawn in court, I agree plaintiffs that the have inferences [Torgerson and presented Mundell’s] favor. Id. at sufficient evidence from 255, jury which a reasonable could find unlaw- 106 S.Ct. at 2513. reasonable “If ful discrimination. minds could as to the import of differ evidence,” summary judgment is in- SMITH, Judge, Circuit with whom appropriate. Id. at 106 S.Ct. at MURPHY, BYE, MELLOY and SHEPHERD, Judges, join, Circuit Quick Co., v. Donaldson concurring part dissenting part. (8th Cir.1996) added). 1376-77 (emphasis (1) I concur in the holdings court’s And, we should remain mindful “[tjhere is no ‘discrimination case excep- shifting proof burdens of “[t]he set forth in tion’ the application summary judg- Douglas McDonnell designed are to as (2) ment,” supra II.A., Torger- Part ‘plaintiff sure day his [has] fails, § son’s 1981 claim supra Part III. I court despite unavailability of direct respectfully dissent from the court’s con- ” Airlines, evidence.’ Trans World Inc. v. genuine clusion that no issues of material Thurston, 111, 121, 469 U.S. 105 S.Ct. fact exist as to whether the discrimi- (1985) 83 L.Ed.2d 523 (quoting Loeb v. nated against Torgerson based his na- Textron, Inc., (1st origin tional and Mundell based on her Cir.1979)). claims, sure, sex. “The These to be framework set forth in are not certain overwhelming winners with sup- Douglas McDonnell ... was ‘never intend evidence, porting but need not be to rigid, mechanized, ed to be or ritualistic. merit jury. trial Rather, sensible, merely it is orderly way light evaluate the evidence in of com Our circuit cautionary has maintained experience mon as it bears on the critical language for handling discrimination cases ” question of discrimination.’ Weldon v. generation. for a language probably This (3d Cir.1990) Kraft, 896 F.2d should not have mid-eighties survived the Waters, (quoting as there is no Furnco excep- Corp. “discrimination case Constr. tion” to summary 567, 577, judgment standard 438 U.S. 98 S.Ct. (1978)). natory likely reason more motivated the Our sister circuits 957 L.Ed.2d “ “point” employer indirectly by showing ‘[t]he that “highlighted” have and the facie case strength prima employer’s proffered explanation of is pretext will of the disbelieved significance unworthy of credence.” on the depending to case vary from case (quoting Dep’t Cmty. Id. at 507 Tex. of short, everything de- In circumstances. Burdine, 248, 256, v. 450 U.S. Affairs ” Thomas the individual facts.’ pends on (1981)). 1089, 67 L.Ed.2d 207 The S.Ct. Co., F.3d Kodak v. Eastman stage burden at this should plaintiffs be Cir.1999) (1st Woods v. Friction (quoting summary judgment no than the greater (1st Materials, n. i.e., requires, showing genu- standard Cir.1994)). ine of material fact remain that are issues finding pretext of sufficiency “The of the worthy machinery of the of a truth-finding finding a of discrimination support by jury. civil trial on the circumstances of depends although The court concludes that Tor College, 114 case.” Fisher v. Vassar gerson prima and Mundell established a Cir.1997). (2d More- discrimination, , supra face case of see Part difficult, over, if impossible, “it is not II.E., they satisfy step failed to the third way under say any generic in concise or test, i.e., Douglas they of the McDonnell ... an infer- precise what circumstances failed to set forth sufficient evidence to showing from a ence discrimination [of genuine create issues of material fact as to Aka pretext] inappropriate.” of will be City’s proffered whether the nondiscrimi Ctr., Washington Hosp. natory justification hiring for not them— (D.C.Cir.1998). Because dis- significantly “scored lower than cases, crimination, discrimination lacking other candidates” and “were in forms, many case-by- in come different qualifications compared higher as analysis always necessary. is case ranking pretextual, candidates” —were see A Id. at 57-58. court should not become Part In supra reaching II.E.1-6. this con “overly enthralled with the McDonnell so clusion, court, than concen “[r]ather sight as to “lose Douglas proof scheme” trating on what should be the focus of the trees.” [proverbial] forest supports attention —whether the evidence Cnty. Blankenship v. Warren Sheriff’s finding of unlawful discrimination —... (W.D.Va.1996). Dep’t, F.Supp. of the components on the isolated focus[es] stage of the McDonnell third “[T]he framework, Douglas losing McDonnell Douglas pretext stage— framework —the ultimate sight of the issue.” Wells Colo. The Hon- perhaps] the most critical.” [is 1205, 1224 Dep’t of Transp., 325 F.3d Timothy Tymkovich, M. United orable Cir.2003) (Hartz, J., concurring). Circuit, Judge Tenth Circuit for the States evaluating plaintiffs In evidence of Pretext, Denv. The Problem with on the issue of (2008). pretext, we should “focus 506-07 Su- U.L.Rev. discriminatory motives.” employer’s preme Court’s at Tymokovich, supra, 517. We should be step ... is similar to description of this wary allowing “categories pretextual analysis a court description of the ... evidence divert attention [to] [our] evaluating the suffi- would undertake every away from the ultimate issue case: ciency the evidence in a non-Title VII employment adverse decision whether the plaintiff “may succeed case: The employer’s resulted from the unlawful dis- directly [proving either discrimination] crimination.” Id. at 518-19. Put another the court that a discrimi- persuading may That what he intend- “compartmentaliz[e]” origin. well be way, we should categories ed, of evi jury but a reasonable with the benefit “look[] evidence or Viewing at 519. narrowly.” testimony Id. from dence cross-examined Com- evidence, Torgerson and totality of the interpret missioner Field could also at least three dis Mundell have identified indicating comment as that Commissioner fact as to whether puted issues of material opposed hiring Field was to women and nondiscriminatory jus City’s proffered the circumstances, any minorities under man- hiring pretex them were tifications for not datory Ultimately, jury—a or otherwise. of fact are for disputed tual. These issues not this court—should determine Commis- court—to resolve. See jury the this —not meaning. sioner Field’s intended See Quick, at 1376-77. Quick, Delving into 1376-77. First, jury thought could construe processes a reasonable Commissioner Field’s regard- Field’s10 comment explaining away Commissioner and his comment so as to ing grant discriminatory. as the SAFER any discriminatory avoid inference of ani- Carr informed When Council Member inappropriate mus is in direct conflict and that, by accepting Field the Commissioner summary judgment with the standard. grant, City “stipulated SAFER the [that] Second, a jury reasonable could infer minorities,” you and Commis- hire women discriminatory animus from Fire Chief Ka- replied, according sioner Field to Council pler’s that Torgerson comment he found known, Carr, I I Member that “had would and Mundell “unfit.” Kapler Fire Chief City that the have recommended take made the statement to Council Member grant. the He said Council Member [to at a meeting Carr June 2006 to discuss City should have Carr never that] hiring firefighters. opined more that Carr grant stipula- taken the if that was the City anyone should not hire else under usurps jury’s tion.” The court func- grant, minority SAFER lest a candi- by construing tion this comment in the date not hired hail the to court. Fire City, light most favorable to the not Tor- Kapler allegedly responded Chief that he gerson and The court inter- Mundell. Torgerson interviewed and Mundell and prets Commissioner Field’s comment as “found them unfit.” The court “credits nondiscriminatory “Congress because ex- testimony Carr’s that three months after plicitly commands that Title VII shall not said, hirings, Kapler Fire T Chief interpreted be require preferential to ” supra found them unfit.’ Part II. See treatment because of sex or national ori- E.4. gin on account of an imbalance in the Viewing the in Torgerson facts percent employed, number or of those favor, Mundell’s the court also concludes compared to the per- relevant number or they have an admis- “demonstrate[d] community.” cent in the Part supra See that, brief, sion Kapler quote to their Thus, court, II.C.l. to according ‘they mentally physically were not or fit Commissioner Field’s comment must be duty, though they passed even interpreted merely evidencing as had his dis- agreement required physical agility with mandatory hiring test and the ” persons based on City’s background their sex national check.’ Id. But while (of 15) forms, expresses participat- 10. While the court its doubt that recommendation meetings during pro- Commissioner Field was decisionmaker in ed in Commission cess, hirings, many it assumes that he was a decision- were acts done in name of maker, Commissioners, noting including that "Commissioner Field did all three him.” See list, certify signed supra vote to the ranked Part II.C.l. “Torgerson intent in using the court admits the term “unfit.” But on a dispute,” a factual Mundell have identified summary motion for judgment, the court “dispute as to what it concludes that this Kapler’s should not credit Fire Chief prof- said to Carr is not material” be- Kapler explanation fered of his use of the word. “[e]veryone cause involved this case— Moreover, Kapler Fire Chief never ex- Mundell, and all the offi- Torgerson, plained why, during a discussion cials, except Kapler (according once to grant protected-group SAFER candi- Carr) agreed they qualified — dates, might he have referred Torger- firefighters.” (emphasis be Id. added son and Mundell “unfit” though— as even part). precisely This statement indicates by his own “quali- are admission— why Kapler’s purported Fire Chief com- fied.” and Mundell are entitled ment is material —because Fire Chief Ka- to reasonable inferences drawn in their occasion, pler, on least one commented A jury favor. this court—-should de- —not Mundell, Torgerson that minority both termine meaning credibility candidates, discussing “unfit” in were Kapler’s Fire Chief explanation after a hirings, grant, recent the SAFER and the trial on the merits. In protected-group deposi- candidates. his tion, Kapler Third, Fire Chief skirted the issue of a jury reasonable could draw an why might Torgerson he have called and inference of sex discrimination from Com- “unfit,” merely explaining Mundell how he purported missioner Withers’s comment applying the word fit” without then “use[s] that he wanted to hire Candidate 3—the that definition to and Mundell. convicted felon—because “he was the abso- that “they’re He then admitted on our list big, strong lute firefighter type” or “he so, candidates, qualified yes, they’re as big guy was a good and that he’d make a qualified firefighters.” to be firefighter.” The district court concluded Kapler’s using Fire Chief intent that Commissioner “unfit” meaning term and its intended are Withers justi- made the statement while questions jury of fact for the to determine. fying appointment of a convicted argument, City’s At oral counsel ar- firefighter felon to a position. Withers’s gued that Fire Kapler Chief statement is devoid to wom- of reference explained deposition] his that [in en, Carr, and according to Withers did term “fitness” is used [Minnesota’s] not any indicate that he had concerns civil service statute that talks about full ability about a female’s to meet examinations of candidates to determine physical firefighting. demands of With- positions, their relative fitness fire- observation that a er[s]’s candidate was fighter positions, explained and he [that] “big guy” and assessment of the candi- “fit,” meaning he used the term “fit for potential firefighter date’s as a in de- final three and the rule of three to fense of the appoint decision to the can- certified,” meaning be not that didate is not discriminatory evidence of “unqualified.” animus toward women. When asked where in the record Fire added.) (Emphasis Similarly, majority Kapler explained Chief the use of the term ‘big guy’ concludes that three, “[t]he statement “unfit” in terms the rule of coun- Mundell, does not relate to or to the abili- Kapler sel conceded Fire Chief did applicants, ties of female and thus is jury, not cite the rule of three. Before a City’s argue counsel would be free to direct evidence of discrimination.” Part jury to a Kapler’s this was Fire Chief II.C.2. comment, Withers’s

But Commissioner gender, pur- as he face, its references Curtner, Chism v. 619 F.3d that Candidate 3 “was portedly stated Cir.2010) (“sparingly,” affirming). Mundell is not a big guy.” Undisputedly, Inc., Int’l, Colenburg v. Starcon 619 F.3d jury certainly A could infer “big guy.” Cir.2010) (“sparingly,” affirm- comment was harmless Withers’s ing). defending the during made a conversation Lincoln, Wisbey City jury But hiring of could Candidate (8th Cir.2010) (“sparingly,” “particular- reasonably discriminatory infer a ani- also nonmovant,” ly affirm- deferential comment, reasonably mus from the con- ing). indicating that struing the comment as of a Commissioner Withers’s idea model County Special Dixon v. Pulaski Sch.

“firefighter type” “big, strong” “guy.” is a Dist., (8th Cir.2009) evidence, mak[ing] “[W]eigh[ing] (“sparingly,” affirming). determinations, credibility at- [and] Advantages, Buboltz v. Residential tempt[ing] to determine the truth of the (8th Cir.2008) (“seldom,” Quick, jury. function of matter” is the affirming). Here, at 90 F.3d 1376-77. the court has 1049, (8th King Hardesty, v. 517 F.3d 1057 usurped jury’s by conclusively role re- Cir.2008) (“sparingly,” affirming in part, solving disputed genuine issues of material in reversing part). Looking fact. the evidence as a Serv., Inc., Devin v. Schwan’s Home 491 considering piece whole—and not each (8th Cir.2007) 778, (“seldom,” F.3d 785 af- Torger- evidence in a vacuum—I find that firming). produced son and Mundell have sufficient evidence material fact issues remain Gonzales, 578, Higgins v. 481 F.3d 584 City’s to whether the for as reasons (8th Cir.2007) (“seldom,” affirming). hiring pretextual. Summary them were Nursing Arnold v. Rehab. & Ctr. at Good judgment serves an important efficiency LLC, (8th 843, Shepherd, 471 F.3d 845^46 by resolving function lacking cases materi- Cir.2006) (“sparingly,” affirming). dispute by al factual more efficient means Inc., Operations, v. 442 Wallace DTG F.3d However, than a trial. where material (8th 1112, Cir.2006) 1117, (“sparing- 1118 exist, factual disputes especially those caution,” ly,” “with reversing). which turn on evaluation of witness credi- bility, injustice permit it is no the mat- Works, Simpson v. Des Moines Water 425 ter to be tried. (8th Cir.2005) 538, (“disfavored,” F.3d 542 affirming).

Accordingly, I would affirm the district Torgerson’s § court’s dismissal of 1981 Commc’ns, Inc., 870, v. Bass SBC 418 F.3d grant summary claim but reverse the (8th Cir.2005) (“seldom,” affirming). 873 judgment Ti- Mundell’s Bank, N.A, 845, Rodgers v. U.S. 417 F.3d tle VII claim and remand to the district (8th Cir.2005) (“seldom,” 850 affirming). proceedings. court further Servs., Inc., 1030, Kelly v. Haas 409 F.3d (8th Cir.2005) (“seldom,” affirming 1034-35 Appendix reversing in in part, part). Ridges Smith v. Fairview Hosp., 625 F.3d (8th Cir.2010) 1076, Servs., Inc., 1001, (“sparingly,” Pope 1082 v. ESA 406 F.3d (8th Cir.2005) close,” “very (“seldom,” affirming). affirming). 1006

1059 Inc., v. Peer 515, County, Whitley Sys., Scott v. Review F.3d Peterson 406 221 Cir.2005) (8th (8th. (“seldom,” 1053,1055 Cir.2000) affirming in 520 F.3d (“sparingly,” reversing part). in part, affirming). Soc., Dep’t v. Missouri Mental v. Kampouris Williams St. Loids Symphony

Health, Cir.2005) 972, (8th (8th 845, Cir.2000) 407 F.3d 975 210 F.3d 847 (“particu- (“seldom,” affirming). larly nonmovant, af- deferential” firming). Mining Mfg., v. Minnesota & Stidham Cir.2005)

Inc., (8th (“sel- Inc., 935, Truck, F.3d Kells v. Sinclair Buick-GMC 399 937 (8th dom,” affirming). Cir.2000) 827, (“seldom,” 210 F.3d 830 reversing part, affirming in part). (8th 671, Perry, Woods 375 F.3d 674 Cir.2004) (“sparingly,” affirming). Bassett v. Minneapolis, 211 F.3d (8th Cir.2000) 1097, (“seldom,” re- Indus., Inc., v. Delta Duncan Consol. cases). versing) (citing (8th 1020, Cir.2004) (“seldom,” F.3d Bell v. Conopeo, affirming). Cir.1999) (“particularly deferential” to Pharm.,

Wheeler Aventis F.3d nonmovant, reversing). (8th Cir.2004) (“with caution,” affirm- ing). Keathley Corp., v. Ameritech (8th Cir.1999) (“seldom,” affirming Techs., v. Honeywell Mfg. Turner Fed. & part, reversing part). LLC, Cir.2003) affirming). (“sparingly,” Co., Breeding Gallagher v. Arthur J. & (8th Cir.1999) (“seldom,” F.3d W.Corp., v. Nextel Mayer affirming part, reversing part). in in (8th Cir.2003) (“seldom,” affirming). 806 Lynn v. Deaconess Med. Campus, Ctr.-W. Dist., v. R-II Liberal Sch. 314 EEOC F.3d (8th 484, Cir.1998) (“sel- 160 486-87 F.3d (8th Cir.2002) (“seldom,” 920, 922 revers- dom,” reversing). ing). Corp., Hindman v. Transkrit 145 F.3d Veneman, v. 517, Jacob-Mua 289 F.3d 520 Cir.1998) 986, (8th (“seldom,” 990 revers- Cir.2002) (8th (“cautiously granted,” af- ing). firming). Ctr., Ridgeview Snow v. Med. 128 F.3d Woodbridge v. 812, Corp.,

EEOC F.3d 263 (8th Cir.1997) 1201, (“seldom,” 1205 “par- (8th Cir.2001) (“particularly 814 deferential nonmovant, ticularly deferential” to the af- nonmovant,” affirming). firming). Inc., Monfort, v. 906, Luciano F.3d 259 Wolle, (8th Duffy v. 1026, 123 F.3d Cir.2001) 1033 (8th (“sparingly,” affirming). 908 Cir.1997) (“seldom,” affirming). v. Pub. Dist. Simmons Neio Sch. No. Serv., Inc., v. Parcel United Cir.2001) 115 1210, (8th

Eight, 251 F.3d 1218 Helfter (8th Cir.1997) 613, (“seldom,” F.3d 615-16 (“sparingly,” reversing). affirming). Co., 826, (8th v. Toro Heaser 247 830 F.3d Airlines, Inc., v.

Cir.2001) 861, Chock Nw. (“seldom,” 113 F.3d affirming). (8th Cir.1997) (“sparingly,” affirming). 862 Widnall, Bradley v. 626, 232 630-31 F.3d Univ., Cir.2000) 1261, Smith v. Louis (8th St. 109 (“sparingly,” affirming). F.3d (8th Cir.1997) (“seldom,” reversing). 1264 Paul, v. City 735, St. Mems 224 F.3d Co., Cir.2000) 484, Mfg. (8th Webb v. (“seldom,” in Garelick reversing 94 F.3d (8th Cir.1996) in part, affirming part). (“particularly deferen- Indus., discrimination, M-Tron Hillebrand v. re- alleging party tial” to Cir.1987) (8th 363, (“sparingly,” F.2d versing). reversing in “seldom,” affirming part, in Airlines, Inc., 620, 72 F.3d v. Nw. London part). Cir.1995) affirming (8th (“sparingly,” part). in reversing part, 62 F.3d Corp., Machs. Infl Bus. v. Wilson Cir.1995) (“seldom,” (8th affirm-

237, 240

ing). America, Lines, Inc., 59 F.3d Greyhound UNITED STATES v. Bialas Cir.1995) (8th (“seldom,” Appellant/Cross-Appellee, affirm- 759, 762 ing). v. Cos., Inc., Fleming

Davis v. PALMER, Appellee/Cross- Debra (8th Cir.1995) revers- (“sparingly,” Appellant. ing). America, United States (8th West, 47 F.3d v. Oldham Appellant/Cross- Cir.1995) (“seldom,” reversing). Appellee, Corp., 45 F.3d v. Hussmann Hardin v. Cir.1995) reversing). (“sparingly,” Barkau, Appellee/Cross- B. Todd Emeth, Congregation Shaare v. Weissman Appellant. Cir.1994) (“sel- 1038, 1045 10-2724, 10-2272, 10-2399, 10-2824. dom,” Nos. reversing). 1338, 1341 Runyon, Crawford Appeals, States Court of United (8th Cir.1994) (“seldom,” reversing part, Eighth Circuit. affirming part). May 2011. Submitted: R-6, Dist. Reorganized Sch. Gill July Filed: (8th Cir.1994) (“with cau- En Banc Rehearing Rehearing tion,” affirming). Aug. Denied 702, 703 Sweeney City ofLadue, 25 F.3d Cir.1994) (8th (“seldom,” affirming). Anheuser-Busch,

Kehoe Cir.1993) (8th close,” (“very re-

versing). Co., Express v. Am.

Weber (8th Cir.1993) (“seldom,” affirm-

515-16

ing). Soc’y, v. Minnesota Historical

Johnson Cir.1991) (“sel- 1239,1244^5

dom,” affirming part, vacat- “sparingly,”

ing part). Rehab., Inc.,

Haglof v. Nw. Cir.1990) (“seldom,” revers-

494-95

ing).

Case Details

Case Name: Torgerson v. City of Rochester

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 21, 2010

Citation: 643 F.3d 1031

Docket Number: 09-1131

Court Abbreviation: 8th Cir.