This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0925
Greg Peterson, Appellant,
Souphanny Dean, Co-Appellant,
Brian Rogge, et al., Plaintiffs,
vs.
City of Richfield, Minnesota, Respondent.
Filed March 21, 2016 Reversed and remanded Larkin, Judge
Hennepin County District Court File No. 27-CV-13-20359
Gregg M. Corwin, Grant S. Gibeau, Gregg M. Corwin & Associate Law Office, P.C., St. Louis Park, Minnesota (for appellants)
Julie Fleming-Wolfe, St. Paul, Minnesota (for respondent)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and Kirk,
Judge. UNPUBLISHED OPINION
LARKIN, Judge
Appellants challenge the district court’s grant of summary judgment for respondent.
Because there are genuine issues of material fact regarding appellants’ claims under the
Minnesota Human Rights Act, summary judgment is inappropriate. We therefore reverse
and remand.
FACTS
Appellants Greg Peterson and Souphanny Dean are Richfield Police Department
(RPD) officers employed by respondent City of Richfield (city). In April 2012, Peterson
sued the city, claiming that the RPD engaged in age discrimination when it removed him
from the special investigations unit earlier that year. The district court held a bench trial
and ordered judgment for Peterson on September 19, 2013.
In the fall of 2013, Peterson, Dean, and Brian Rogge, who were all over 40 years
old, applied to be eligible for promotion to a detective position with the RPD. Andrew
Ueland and Rian Jensen, two RPD officers who were in their late 20s or early 30s, also
applied for the position. The application process consisted of a written exam, which the
RPD administered on October 8, and an oral interview, which the RPD conducted on
October 15. Based on the written exam and oral interviews, the RPD ranked the applicants
and assigned final scores as follows: (1) Ueland: 70.75; (2) Jensen: 67; (3) Peterson: 56.25;
(4) Dean: 55.25; and (5) Rogge: 54.5. Because Ueland and Jensen scored higher than the
other officers, they were next in line to receive detective promotions under the RPD’s
promotional system.
2 Peterson, Dean, and Rogge sued the city, alleging that the city violated the
Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.08, subd. 2 (2014), by
“changing the promotional process to discriminate against older officers in favor of
younger officers” and, in fact, promoting “two younger officers . . . at the expense of three
older officers.” Peterson also alleged that the city retaliated against him, in violation of
Minn. Stat. § 363A.15 (2014), by ranking two less-experienced officers above him in the
oral interview because he prevailed in his previous age-discrimination lawsuit against the
city. Another RPD officer, Jeff Hatzenbeller, also over 40 years old, joined the lawsuit,
alleging that the city engaged in age discrimination when the RPD denied him a crime-
prevention-officer assignment. The city moved for summary judgment, and the parties
presented the following evidence for the district court’s consideration.
Prior to 2012, the RPD used a detective-eligibility exam developed by a company
called Personnel Decisions Inc. (PDI) and comprised of four parts: (1) a written
background and experience statement scored by PDI, (2) a written test scored by PDI,
(3) an oral interview with a panel that included one RPD command staff member and two
command staff members from other police departments, and (4) a “promoteability index,”
which ranked candidates using metrics such as integrity, professionalism, and work product
based on input from supervisors.
In 2010, the RPD learned that prior candidates had shared the detective-eligibility
oral-interview questions with other candidates. Following this discovery, the RPD changed
its testing procedure. The new exam had two components: (1) a written test comprising
40% of an applicant’s total score, evaluated by Standard & Associates, a national testing
3 service, and (2) an oral interview comprising 60% of the score. The oral-interview panel
included city human-resources staff and RPD command staff. Command staff members
from outside police departments no longer participated in the evaluation process. The RPD
used the new exam procedure to fill a sergeant position in 2012.
The exam that Peterson, Dean, and Rogge took to determine their eligibility for the
detective promotion mirrored the exam the RPD administered in 2012 to fill the sergeant
position. The interview panel included Lieutenant Michael Koob and Deputy Chief Jay
Henthorne from the RPD, Human Resources Manager Jesse Swensen, and Assistant City
Manager Pamela Dmytrenko. The panel members scored the applicants as follows:
Applicant: Panel Members: Koob Henthorne Swensen Dmytrenko Ueland 60 64 81 78 Jensen 63 66 68 71 Peterson 63 52 52 58 Dean 57 55 56 53 Rogge 63 59 53 43
Appellants presented evidence that they had performed well enough on prior exams
to score at or near the top of the applicant pool. For example, Peterson received the highest
oral interview score on the 2008 sergeant examination. Dean received the highest score on
the 2009 detective examination. Appellants also presented evidence regarding their
experience. Peterson joined the RPD in 1997, had more investigative experience than any
other patrol officer in the RPD, and had worked on the special investigative unit, the metro
4 gang strike force, the ICE task force, and the narcotics canine unit. Dean joined the RPD
in 1993 and had four years of investigative experience. In contrast, Ueland had two and a
half years of investigative experience, and Jensen had one and a half years of investigative
experience.
Rogge submitted an affidavit dated August 25, 2014, stating that, after the October
2013 detective exam, Lieutenant Koob approached him to discuss his test results and told
him: “I don’t want you to go south like other officers who have 18 years of experience.”
Rogge’s affidavit stated that “[b]ased on the tone of his voice, it was clear that Lt. Koob
was inferring that older officers had become a liability for the department” and that he “was
floored by this comment because Lt. Koob’s statement confirmed that age had factored
into the grading process.” The city submitted Rogge’s deposition testimony from July 23,
2014. During his deposition, the city’s attorney asked Rogge “Did any supervisor or
manager make any ageist remarks to you?” Rogge answered “The only one would be from
Lieutenant Mike Koob in the patrol room where he said he didn’t want officers of, you
know, with my tenure—he didn’t really use age, but of my seniority going south.”
Fellow plaintiff Hatzenbeller submitted deposition testimony from Jill
Mecklenburg, a civilian assigned to the crime-prevention unit, and Amy Dusek, a Hennepin
County community liaison. Hatzenbeller had applied to the crime-prevention unit, which
historically was comprised of one police officer and one civilian partner. The RPD posted
the position in March 2013. When the application period closed on April 8, Hatzenbeller
was the only applicant. Rather than appoint Hatzenbeller, the RPD command staff decided
to keep the crime-prevention-officer assignment vacant for an indeterminate period of time.
5 Mecklenburg testified that on April 9, the day after the posting for the assignment closed,
Deputy Chief Henthorne told her that “they didn’t want it to be a retirement position.”
Dusek similarly testified that Deputy Chief Henthorne told her that he did not want the
assignment to become a “retirement position.”
The district court granted the city’s motion for summary judgment on all claims
except Hatzenbeller’s age-discrimination claim. Hatzenbeller’s claim was tried to the
district court, and the district court entered judgment against him. Peterson and Dean
appeal.
DECISION
“A motion for summary judgment shall be granted when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that either party is entitled to a judgment
as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Where reasonable minds might draw
different conclusions from the evidence presented, summary judgment is inappropriate.
Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 665 (Minn. 2015).
“[Appellate courts] review a district court’s summary judgment decision de novo.
In doing so, we determine whether the district court properly applied the law and whether
there are genuine issues of material fact that preclude summary judgment.” Riverview Muir
6 Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation
omitted). “On appeal, the reviewing court must view the evidence in the light most
favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761.
The reviewing court considers only the evidence that was before the district court in the
summary-judgment proceeding. Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d
395, 404 (Minn. 1998).
I.
Appellants contend that the district court erred in dismissing their age-
discrimination claims because “[m]aterial facts existed that if taken as true evinced a
discriminatory animus behind the results of the 2013 exam.” Under the MHRA, an
employer may not discriminate against an employee based on age. Minn. Stat. § 363A.08,
subd. 2(3). “[P]roof of a discriminatory motive may be established by direct evidence.”
Goins v. W. Grp., 635 N.W.2d 717, 722 (Minn. 2001). “Direct evidence of an employer’s
discriminatory motive shows that the employer’s discrimination was
7 purposeful, intentional or overt.” Id. “Courts have found direct evidence of discriminatory
motive where a statement or a policy is discriminatory on its face.” Id.
Proof of discrimination may also be established by circumstantial evidence under
the three-part burden-shifting test established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973). Goins, 635 N.W.2d at 724.
The McDonnell Douglas scheme allocates the burden of producing evidence between the parties and establishes the order of presentation of proof. A plaintiff must establish a prima facie case of discriminatory motive. If the plaintiff makes this showing, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the employer articulates such a reason, the plaintiff must then put forward sufficient evidence to demonstrate that the employer’s proffered explanation was a pretext for discrimination.
Id. (citation omitted); see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101
(Minn. 1999) (“In construing the MHRA, we apply law developed in federal cases arising
under Title VII of the 1964 Civil Rights Act . . . .”); Anderson v. Hunter, Keith, Marshall
& Co., 417 N.W.2d 619, 623 (Minn. 1988) (“As the result of the substantial similarities
existing between Title VII and [the MHRA], we have frequently applied principles which
have evolved in the adjudication of claims under the federal act, and, specifically we have
adopted the McDonnell Douglas analysis as an aid to resolving cases claiming disparate
treatment.”). “Under [the McDonnell Douglas] framework, a plaintiff may establish a
prima facie case of discrimination in a failure-to-promote case by showing that: (1) she is
a member of a protected group; (2) she was qualified and applied for a promotion to an
available position; (3) she was rejected; and (4) similarly situated employees, not part of
8 the protected group, were promoted instead.” Gentry v. Georgia-Pac. Corp., 250 F.3d 646,
650 (8th Cir. 2001).
Appellants appear to argue that the comments made by Lieutenant Koob and Deputy
Chief Henthorne constitute direct evidence that demonstrates a “discriminatory animus in
the decisional process.” But appellants did not argue that they had direct evidence of
discrimination in district court. As the district court stated, appellants “acknowledge they
do not have direct evidence of age discrimination, and they instead rely on the McDonnell
Douglas indirect method.” “A reviewing court must generally consider only those issues
that the record shows were presented and considered by the trial court in deciding the
matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).
A party may not obtain review by raising the same general issue litigated below but under
a different theory. Id. We therefore do not consider the statements under the direct-
evidence standard.
Under the McDonnell Douglas test, the parties agree that appellants established a
prima facie case of discrimination and that the city articulated a legitimate,
nondiscriminatory reason for the change in testing procedure, which resulted in the
eligibility roster ranking Peterson and Dean lower than Ueland and Jensen. Thus, the only
issue before this court is whether appellants put forward sufficient evidence to demonstrate
that the city’s proffered explanation was a pretext for discrimination.
“To survive summary judgment at the third stage of the McDonnell Douglas
analysis, a plaintiff must demonstrate the existence of evidence of some additional facts
that would allow a jury to find that the defendant’s proffered reason is pretext and that the
9 real reason for its action was intentional discrimination.” Krenik v. Cty. of Le Sueur, 47
F.3d 953, 958 (8th Cir. 1995). The combination of several evidentiary items, each of which
alone may be inadequate, can be sufficient to raise an issue of fact regarding pretext. For
example, “[t]he combination of statistical evidence, evidence of discriminatory corporate
culture, and lack of uniformity in [the employer’s] ranking process, along with [the age-
discrimination plaintiff’s] sharp drop in ranking, is evidence sufficient to raise an issue of
fact as to pretext when the evidence is viewed in the light most favorable to [the plaintiff].”
Hamblin v. Alliant Techsystems, Inc., 636 N.W.2d 150, 155 (Minn. App. 2001), review
denied (Minn. Feb. 19, 2002).
Appellants argue that the following evidence, considered in its entirety, would allow
a jury to find that the city’s proffered reason for changing the promotional process is
pretextual and that the real reason for its action was age discrimination: (1) because the
city removed the promoteability index and the background and experience sections of the
original exam and allocated the majority of the possible total points to the oral-
examination, older officers were not able to use their experience and history of positive
service, (2) the clustering of points and the disparity of the scores between the older and
younger officers on the new exam, (3) the district court’s determination that the city
previously discriminated against Peterson based on age, and (4) the comments of
Lieutenant Koob, who approached Rogge after the test and said to him: “I don’t want you
to go south like other officers who have 18 years of experience,” and Deputy Chief
Henthorne, who said that he did not want the crime-prevention-officer position to become
a “retirement position.”
10 The city contends that this court should not consider Lieutenant Koob’s statement
because it was offered by Rogge “as an improper attempt to manufacture factual support
for his and appellants’ age discrimination claim.” The city argues that “Rogge’s affidavit
[regarding Lt. Koob’s comment] significantly contradicted his deposition testimony by
changing what Lt. Koob said to him and reinterpreting it to change an age-neutral statement
into a statement arguably indicative of age bias.” We disagree. Although “[a] self-serving
affidavit that contradicts earlier damaging deposition testimony is not sufficient to create a
genuine issue of material fact,” Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881
(Minn. App. 1995), Rogge’s affidavit is consistent with his earlier deposition testimony.
In his deposition about a month earlier, the city’s attorney asked Rogge “Did any supervisor
or manager make any ageist remarks to you?” Rogge replied “The only one would be from
Lieutenant Mike Koob in the patrol room where he said he didn’t want officers of, you
know, with my tenure—he didn’t really use age, but of my seniority going south.” The
city’s attorney asked Rogge if he “interpreted that to be a remark that was ageist” and
Rogge answered “[y]eah.” We therefore consider Lieutenant Koob’s alleged statement in
our analysis.
The city also contends that this court should not consider Deputy Chief Henthorne’s
comment. Specifically, it argues that appellants are “collaterally estopped from arguing
that Deputy Chief Henthorne made the statement referring to a ‘retirement position,’”
because after summary judgment was granted on the other claims, the district court ruled
against Hatzenbeller at trial, finding that “plaintiff failed to prove by a preponderance of
the evidence . . . that any member of command staff used [the term ‘retirement position’].”
11 We do not consider the city’s collateral-estoppel argument because it is made for the first
time on appeal. See Thiele, 425 N.W.2d at 582 (“A reviewing court must generally
consider only those issues that the record shows were presented and considered by the trial
court in deciding the matter before it.” (quotation omitted)). Moreover, on review of
summary judgment, this court considers only the evidence that was before the district court
in the summary-judgment proceeding. See Wall, 584 N.W.2d at 404 (rejecting argument
that appellate court “should consider the entire trial record and not merely the evidence
before the district court at summary judgment”).
The city also argues that Deputy Chief Henthorne’s statement should not be
considered because the alleged statement was not made about Peterson or Dean, did not
refer to the October 2013 detective promotion process, and was therefore “too remote in
time and subject matter.” The city relies on a rule applied under the direct-evidence
standard, which provides that “stray remarks in the workplace, statements by
nondecisionmakers, or statements by decisionmakers unrelated to the decisional process
itself” do not constitute direct evidence of discrimination. Walton v. McDonnell Douglas
Corp., 167 F.3d 423, 426 (8th Cir. 1999) (quotations omitted). But even under that
standard, direct evidence may include “[c]omments which demonstrate a discriminatory
animus in the decisional process,” or those “uttered by individuals closely involved in
employment decisions.” Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) (quotation
omitted).
We are not considering the statements under the direct-evidence standard. We are
considering, under the McDonnell Douglas test, whether appellants put forward sufficient
12 evidence to demonstrate that the city’s proffered explanation for changing the promotional
process was a pretext for discrimination. As to this issue, we are persuaded by the
reasoning of the Eighth Circuit, which has explained that “[i]n a pretext case,” even stray
remarks are “surely the kind of fact which could cause a reasonable trier of fact to raise an
eyebrow, thus providing additional threads of evidence that are relevant to the jury.” Bevan
v. Honeywell, Inc., 118 F.3d 603, 610 (8th Cir. 1997) (citations and quotations omitted).
“Stray remarks therefore constitute circumstantial evidence that, when considered together
with other evidence, may give rise to a reasonable inference of age discrimination.” Fisher
v. Pharmacia & Upjohn, 225 F.3d 915, 923 (8th Cir. 2000).
Deputy Chief Henthorne was a decisionmaker during the October 2013 detective-
promotional process and his alleged comment—although made about another hiring
decision—was made within months of the October 2013 exam. Even if his comment is a
“stray remark,” it is properly considered as circumstantial evidence along with the other
evidence. Deputy Chief Henthorne’s suggestion that he did not want the crime-prevention-
officer position to become a “retirement position” after the position was left open rather
than filled by Hatzenbeller, who was over 40 years old, is certainly the type of comment
that “could cause a reasonable trier of fact to raise an eyebrow.”
The city further contends that this court should not consider the changes to the
detective exam. The city argues that appellants’ MHRA claims based on the changes to
the exam process are barred by the statute of limitations because the changes occurred more
than one year before appellants brought their lawsuit. See Minn. Stat. § 363A.28, subd. 3
(2014) (“A claim of an unfair discriminatory practice must be brought . . . within one year
13 after the occurrence of the practice.”). We are not persuaded. Although the new exam was
developed and applied to a sergeant-promotion process in 2012, it was not tailored to or
applied to the detective-promotion process until 2013. Appellants filed their lawsuit in
November 2013.
The city argues that neither the changes in the exam process nor the results of the
October 2013 exam “support an inference of discrimination.” Although it may be true that
neither the changes to the exam process nor the results of the October 2013 exam alone
would allow a jury to find that the real reason for the city’s action was intentional
discrimination, that evidence in combination with the other evidence offered by appellants
is sufficient to raise an issue of fact regarding pretext when viewed in the light most
favorable to appellants. Reasonable minds could draw different conclusions from the
evidence presented.
“The district court’s function on a motion for summary judgment is not to decide
issues of fact, but solely to determine whether genuine factual issues exist.” DLH, 566
N.W.2d at 70. We conclude, de novo, that there are genuine issues of material fact
regarding appellants’ age-discrimination claims and that summary judgment on those
claims is therefore inappropriate.
II.
Peterson contends that the district court erred by granting the city’s motion for
summary judgment on his retaliation claim. Section 363A.15 provides that:
It is an unfair discriminatory practice for any individual who participated in the alleged discrimination as a[n] . . .
14 employer . . . to intentionally engage in any reprisal against any person because that person: (1) opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
“A reprisal claim is analyzed under the McDonnell Douglas burden-shifting test. The
prima facie case for reprisal consists of: (1) statutorily-protected conduct by the employee;
(2) adverse employment action by the employer; and (3) a causal connection between the
two.” Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 548 (Minn. 2001)
(citation and quotation omitted).
Peterson contends that the district court erred by dismissing his “claim that his
results on the 2013 exam were retaliation for winning his prior age discrimination case
against [the city] 26 days prior to the oral examination portion of the 2013 exam.” Peterson
argues that he “successfully . . . establish[ed] statutorily protected conduct, his lawsuit, and
adverse action by the employer, his negative score on the 2013 exam,” and that the district
court erred by determining that he could not show a causal connection between the two.
Specifically, Peterson argues that the following evidence shows a genuine issue of material
fact regarding causation: (1) the 26-day temporal proximity between the age-
discrimination verdict in his favor in September 2013 and the results of his October 2013
exam, (2) his prior high examination scores, (3) his strong overall job performance, and (4)
the fact that the “two officers who testified against Peterson and were benefited by [the
city’s] previous illegal conduct, Ueland and Jensen, were the two who scored the highest
on the 2013 promotional exam.”
15 The city contends that Peterson abandoned his retaliation claim in district court “by
failing to address the city’s argument that the claim should be dismissed in his response to
summary judgment.” The record does not support the city’s assertion that Peterson
abandoned his retaliation claim. At the summary-judgment hearing, the district court asked
Peterson’s attorney to clarify the claims that the plaintiffs were asserting. Peterson’s
attorney stated that Peterson claimed reprisal on the basis that the city retaliated against
him for prevailing on an age-discrimination lawsuit in September 2013.
As to the merits of Peterson’s retaliation claim, the city argues that the verdict in
Peterson’s previous discrimination lawsuit and the date of the oral interviews “were not
the two events that should have been used to determine temporal proximity.” Instead, the
city argues, “the date of Peterson’s protected conduct in filing the age discrimination claim
(April 2012), and the adverse action in failing to promote him (October [13,] 2013, when
the eligibility register was certified), were the operative dates for purposes of determining
temporal proximity.” Which event, if any, motivated the city to retaliate against Peterson
is for the factfinder to determine at trial.
The city also argues that “generally more than a temporal connection is required to
present a genuine factual issue on retaliation” and “Peterson did not have any additional
evidence other than the timing between the verdict on his previous age discrimination claim
and the oral interviews in the 2013 detective promotional process.” But as set forth above,
Peterson does not solely rely on temporal proximity. He also relies on his prior test scores
and good job performance, among other things. That evidence is sufficient to present an
issue of fact regarding causation.
16 Once again, when reviewing summary judgment, we must “view the evidence in the
light most favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d
at 761. Under that standard, reasonable minds could draw different conclusions from the
evidence presented. We therefore conclude that there are genuine issues of material fact
regarding Peterson’s retaliation claim and that summary judgment on that claim is
inappropriate. We reverse the district court’s order granting summary judgment and
remand for further proceedings consistent with this opinion.
Reversed and remanded.