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Hilde v. City of Eveleth

United States Court of Appeals, Eighth Circuit

February 5, 2015

Lt. LeRoy Hilde, Plaintiff - Appellant
City of Eveleth, a Minnesota political sub-division, Defendant - Appellee

Submitted: November 13, 2014,

Page 999

[Copyrighted Material Omitted]

Page 1000

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For Lt. LeRoy Hilde, Plaintiff - Appellant: John A. Klassen, John A. Klassen, P.A., Minneapolis, MN; Andrew Muller, Muller & Muller, Minneapolis, MN.

For City of Eveleth, a Minnesota political sub-division, Defendant - Appellee: Patricia Ytzen Beety, Jana O'Leary Sullivan, League of Minnesota Cities Insurance Trust, Saint Paul, MN.

For Aarp, Amicus on Behalf of Appellant(s): Daniel Benjamin Kohrman, Senior Attorney, Laurie A. McCann, Aarp Foundation Litigation, Washington, DC.

Before MURPHY, MELLOY, and BENTON, Circuit Judges.


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BENTON, Circuit Judge.

The City of Eveleth did not promote LeRoy Arthur Hilde to Chief of Police. Hilde--age 51 and retirement-eligible--claims that the City violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § § 623(a)(1), 631(a), and the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.08, subd. 2. He appeals from summary judgment for the City. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.


In January 2012, Chief of Police Brian Lillis announced his retirement. Hilde, on the force for 29 years, applied for the position. He was its only Lieutenant, the second-highest rank. A three-member commission controls hiring, promoting, discharging, and suspending the City police employees. Minn. Stat. § § 419.02, 419.05. The commissioners in 2012 were John Richard England, Mary Debevec, and Gary Skerjance. Between 1990 and 2012, the commission promoted internally, never seeking outside applications for vacancies. When one commissioner asked Chief Lillis whether any internal candidates met the minimum qualifications for his position, Lillis said that the three internal candidates were qualified but " one is not interested," referring to Hilde (Hilde denies telling anyone he was uninterested in the position). The commissioners, recruiting both internally and externally, selected four finalists, including Hilde and an external candidate, Detective Timothy Howard Koivunen.

Hilde had earned a high level of respect from Chief Lillis and the officers he supervised. The commissioners also agreed Hilde was an excellent Lieutenant. As Lieutenant, Hilde served as acting Police Chief when Lillis was unavailable. Hilde had an Associate's degree in law enforcement, and he had completed all continued training (though he did not enroll in leadership or management classes). Koivunen had served with the city of Virginia, Minnesota, for 18 years, reaching the rank of Detective. He had a Bachelor's degree in criminal law. Commissioner Debevec said that she personally chose Koivunen because his education included " some of the more current schools." Lillis also noted Koivunen's more " contemporary training made him an appealing candidate to the [c]ommission."

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The commission's protocol for hiring the Chief was to score three criteria: weighted years of service, training and employment, and an interview. Usually, each commissioner independently scored each candidate. The weighted-years-of-service score counted the candidate's actual years of police service with double credit for time as Sergeant and triple for Lieutenant. The City agrees that the weighted years of service could not be much higher than 65. The training-and-employment score was subjective, with a maximum of 20 points " awarded for specialized training, education or prior employment relevant to the job of Chief of Police." As for the interview points, the commissioners rated each candidate's appearance, greeting, presence, and closure on a scale of 1 to 5, and each candidate's answers to eight interview questions on a scale of 1 to 10. The maximum interview score was 100 points. The maximum total score for a finalist was about 185.

Before the interview, Hilde had a service score of 65-29 years of service, including 8 years as Sergeant and 14 years as Lieutenant--the highest of the finalists. He received 9 out of 20 on training-and-employment, the lowest of the finalists. Questioned about this score, neither the commissioners nor Lillis (who was involved in scoring) could explain how they arrived at it. Koivunen received a service score of 28-18 years of service, including 5 years as Detective, which the commission equated to Lieutenant. Koivunen scored 15 out of 20 for his training-and-employment, the highest of the finalists. The commissioners attributed this to his four-year degree and his participation as a Drug Abuse Resistance Education (D.A.R.E.) instructor at local schools. Before the interviews, Hilde led with a score of 74; Koivunen was second with 43 points.

After interviewing the candidates, the commissioners asked Lillis to leave the room while they deliberated (which he says was not typical). Before leaving, he told them that Hilde was the right choice for the position and that should be " accurately reflected in the scores." Each commissioner gave Koivunen perfect 100 scores for his interview, a first according to Lillis. The commissioners claimed either to have no recollection of changing Koivunen's scores or to have independently reached these scores before deliberating. Hilde's interview sheets also reported identical scores between the commissioners for each component of his interview, totaling 69 points. ...

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