David Torgerson v. City of Rochester

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1131
___________

David Torgerson; Jami Mundell, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
City of Rochester, *
*
Appellee. *
___________

Submitted: November 17, 2009
Filed: May 21, 2010
___________

Before MURPHY, SMITH, and BENTON, Circuit Judges.
___________

SMITH, Circuit Judge.

David Torgerson and Jami Mundell (collectively, "appellants") challenged the
City of Rochester, Minnesota's decision not to hire them as firefighters. Torgerson and
Mundell alleged that Rochester discriminated against them in violation of state and
federal law. Torgerson, a Native American male, alleged discrimination on the basis
of national origin. Mundell, a white female, alleged gender discrimination. Torgerson
and Mundell made the claims under Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C §§ 2000e–2000e-17 (20\00), and the Minnesota Human Rights Act
(MHRA), Minn. Stat. §§ 363A.01–.41 (2006). In addition, Torgerson brings a claim
under 42 U.S.C. § 1981 (2000). The district court granted Rochester's motion for
summary judgment. For the reasons set forth below, we affirm in part and reverse in
part.

I. Background
A. The Hiring Process
Rochester followed a state statute-driven process for hiring firefighters. In
accordance with Minnesota Statute § 420.06, Rochester's Fire Civil Service
Commission ("the Commission") oversees the employment of all officers of the
Rochester Fire Department ("Fire Department"). The Commission consists of three
Commissioners, and any Commission action requires an affirmative vote by at least
two Commissioners.

According to the Commission's Fire Civil Service Rules and Regulations ("the
Regulations"), if a candidate possesses the minimum requirements to apply,1
candidates must then pass written and physical fitness tests to be eligible for
appointment. Phase I of the examination process is a written test, which counts for 30
percent of a candidate's final score. The candidates who receive the 50 highest scores
on the written test advance to Phase II, the physical agility test. The physical agility
test also accounts for 30 percent of a candidate's final score.2 Of the 50 candidates who
participate in Phase II, all who pass the physical agility test advance to Phase III,
which is an interview with a three-person panel.

1
It is undisputed that Torgerson and Mundell possessed the minimum
requirements.
2
Applicants are awarded points for Phase II based on the time it takes them to
complete the agility test. An applicant who takes more than 6 minutes and 30 seconds
to complete the agility test fails the test and cannot continue in the examination
process. Neither Torgerson nor Mundell challenge the written or physical
examinations.

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 All three panel interviewers score a candidate's responses to the interview
questions on a scale of 1 to 10. One panel interviewer represents the Commission, one
represents Rochester's human resources department, and one represents the Fire
Department. The human resources department provides a set of interview questions
and instructs the panel on how to ask the questions and what responses are considered
good responses. These questions are also distributed to the candidates prior to the
interview. The panel interviewers are given objective scoring criteria to establish
which indicators show whether a candidate has desired qualities. Nonetheless,
Rochester concedes that the panel interview contains inherent subjectivity. This panel
interview accounts for the final 40 percent of a candidate's final score.3 Based on the
scoring from the three phases of the selection process, each candidate is ranked and
placed in rank order on an eligibility list that the Commission then certifies. The
Commission then votes to certify the eligibility list, which stands for two years. All
candidates on the eligibility list are qualified for the position of firefighter, although
those ranked higher are considered more qualified.

According to the Regulations, when a vacancy is anticipated or occurs, the fire
chief must make a written request to the Commission to certify to the Rochester City
Council ("City Council") the names of the persons eligible for appointment.
Minnesota Statute § 420.07(7) requires the Commission to certify "the three names
standing highest on the appropriate list to fill any vacancy" ("rule of three"). Section
420.07 and the Regulations permit—but do not require—the certification of up to two
eligible candidates from each "protected group" for which a disparity exists between
the composition of the Fire Department and Rochester's approved affirmative action

3
To get the final score, the candidates' "raw" scores for each phase are converted
to "eligibility points" by multiplying the raw score for each phase by the weight
assigned to the phase. A candidate's final score is the total of his or her eligibility
points, including any veteran's points awarded in accordance with Minnesota Statute
§ 197.455. Non-disabled veterans receive a credit of five eligibility points and
disabled veterans receive a credit of ten eligibility points. Id.

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

The rule of three requires the Commission to certify nine candidates for seven
open positions. For example, the Commission must certify the first, second, and
third-ranked candidates for the first position. Then, assuming Rochester appoints the
highest-ranked candidate for the first position, the Commission must certify the
second, third, and fourth-ranked for the second position, the third, fourth, and
fifth-ranked candidates for the third position, and so on, until certifying the seventh,
eighth, and ninth-ranked candidates for the seventh position. The Commission may
also certify protected group candidates in addition to the rule-of-three candidates
pursuant to the expanded certification procedure. However, before certification, each
candidate eligible for certification for appointment, including any protected-group
candidate, must pass one final stage.

The final candidates must pass a background check and an interview with the
fire chief, as well as medical and psychological examinations. According to the
Regulations, if a candidate fails the interview with the fire chief, background check,
medical examination, or psychological examination, the Commission considers the
next qualified candidate on the eligibility list. The City Council makes the final hiring
decision, but according to City Council member Patrick Carr, the City Council abides
by the recommendations the Commission offers. In the past, Rochester has used an
expanded certification to hire women and non-white firefighters who were not ranked
at the top of the eligibility list. However, if a protected class applicant moves on to the
fire chief interview, the candidate retains his or her original rank on the eligibility list.
Therefore, although all candidates on the eligibility roster meet the minimum
qualifications for the firefighter position, those at the top of the list are recognized as
more qualified for the position than those at the bottom of the list.

4
Native Americans and women are considered protected groups.

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 The focus of the final fire chief interview changes when it comes to
interviewing candidates lower on the list pursuant to expanded certification.
Ordinarily, the final interviews are used to determine if the testing in Phases I, II, and
III missed something that shows there is a reason not to hire a candidate. With respect
to protected-class candidates who rank on the bottom of the list, however, the
interviews are used to see if the testing missed something that shows there is a reason
to hire the candidate over those scoring higher in the process.

B. The Challenged Hirings
In fall 2005, Rochester sought to hire seven firefighters. Rochester received
funding for three positions through a federal "Staffing for Adequate Fire and
Emergency Response" (SAFER) grant. The SAFER grant provided federal funds to
aid Rochester in hiring additional firefighters. The grant itself outlines its purpose:

The purpose of the SAFER grant is to award a grant directly to
volunteer, combination, and career fire departments to help the
departments increase their cadre of firefighters. Ultimately, the goal is
for SAFER grantees to enhance their ability to attain 24-hour staffing
and thus assuring their communities have adequate protection from fire
and fire-related hazards.

Program Guidance for the Staffing for Adequate Fire and Emergency Response
(SAFER) Grants 3 (May 2005), available at
www.fishers.in.us/egov/docs/1118931743_470855.pdf.

The grant contained a list of "Grantee Responsibilities" which included the
following: "Grantees, to the extent possible, will seek, recruit, and appoint members
of racial and ethnic minority groups and women to increase their ranks within the
applicant's department." Id. at 18.

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 In 2005 Rochester began a hiring process that resulted in the certification of 48
candidates on the eligibility list. The eligibility list included three protected-group
candidates: Torgerson, Mundell, and a second white female not a party to this appeal.
Torgerson is a member of the Lac Courte Oreilles Band of Lake Superior Chippewa
Indians of Wisconsin. At the time of his application to the Fire Department, he was
a volunteer firefighter. Torgerson had completed three years of college toward a
degree in fire protection, including completion of Fire Fighter I and Fire Inspection
courses, for which he held licenses. He had received certifications as an Emergency
Medical Technician (EMT) from the National Registry of Emergency Medical
Technicians (NREMT) and the Minnesota Emergency Medical Services Regulatory
Board. Mundell, at the time of her application, had an associate degree in business
management and had earned a diploma in intensive care paramedics from a local
community college. She had a NREMT certificate, and her EMT-Basic license. She
also received licenses for completing Fire Fighter I and Fire Fighter II courses.

At the end of the objective written and agility phases of the examination process
(Phases I and II), Torgerson was ranked 41st and Mundell was ranked 46th out of 48
candidates. By virtue of passing the agility test, both candidates advanced to the panel
interview phase. Mundell's score sheet indicates that Battalion Chief Charles
Hermann, Rochester Human Resources Risk Management Analyst Joan Till-Born, and
Commissioner Joe Powers conducted Mundell's panel interview. According to
Torgerson's score sheet, Till-Born, Hermann, and Commissioner John Withers
conducted Torgerson's panel interview. Both Torgerson and Mundell agree that the
questions asked were what they anticipated based on the list of possible questions and
that none of the questions were inappropriate. Mundell and Torgerson scored 37th and
41st, respectively, on the panel interview phase, which is a subjective phase. This
scoring, combined with their scores from the written and physical examinations
phases, placed Mundell 40th on the eligibility list and Torgerson 45th when the

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Commission certified the eligibility list of 48 candidates at a meeting on November
22, 2005.5

Notably, some candidates—including those who benefitted from the proper
application of veteran's points—made dramatic increases in the rankings after the
subjective panel-interview phase. In fact, of the top eight-ranked candidates on the
original eligibility list, seven were awarded veteran's points, including the top six.
This illustrates the narrow margin between all candidates in terms of total score. As
will be explained infra, this portion of the application process had substantial impact
on the overall rank of the candidates. On December 15, 2005, Fire Chief David Kapler
sent a memorandum to the Commission asking it to forward a list of candidates from
the eligibility list to fill seven vacancies.

On January 18, 2006, the Commission met and discussed the purpose of the
SAFER grant and whether the Commission should expand the certification to include
protected group candidates. At the meeting, Rochester Human Resources Director
Linda Gilsrud noted the "minimal differences in the total points between candidates"
on the eligibility list.6 Gilsrud explained the responsibilities attached to the SAFER
grant and informed the Commission that there were three protected-class applicants
who had been certified on the eligibility list. Powers said that while all candidates on
the eligibility list are qualified, the rank order should be carefully considered. The
Commission then passed a motion to certify to the City Council the rule-of-three
candidates in rank order for six of the appointments and the rule-of-three candidates
plus an expanded certification for the seventh appointment. As a result, nine initial
candidates, plus the protected-group candidates, received interviews. The 12 eligible
candidates were then required to complete the final phases of the selection process:

5
The other female candidate was ranked 37th. It is unknown why 48 and not 50
candidates remained on the eligibility list at this point.
6
A total of ten points separated the candidates ranked 1st and 25th.

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an in-depth background investigation and interview with the fire chief. Torgerson and
Mundell moved on to the fire chief interview for the seventh position, while retaining
their 45th and 40th rankings, respectively. By recommending all three protected-class
applicants for only the seventh position, at most one member of the protected class
could have been hired.

Kapler, with the assistance of Deputy Fire Chief Dan Slavin, interviewed
Candidates 1 through 9—all white males—and the three protected-group candidates.7
When interviewing the top-ranked candidates, Kapler looked to see if there was a "red
flag. Something that show[ed] up. It could be a gut-level feeling . . . that might give
us a clue that there is a concern about a candidate." When interviewing the protected-
group candidates, Kapler looked to see if there was "something that might have been
missed. Is there some quality or attribute this person brings that didn't come out in the
test that we can say, 'Wow, this is a strong candidate regardless of their test scores.'"
Kapler failed Candidate 3 because he did not have his NREMT certification. Kapler
also failed Candidate 4 because he did not appear for his interview.

Kapler then interviewed four additional candidates—Candidates 10 through 13.
On February 13, 2006, Kapler issued a memorandum containing his
recommendations. In addition to not recommending Candidates 3 and 4, he also did
not recommend Candidate 10 because he "was not eligible for [NREMT registry]
before the [eligibility] list was certified" and Candidate 11 because he did "not
demonstrate the level of maturity and preparedness to be successful."

Kapler also did not recommend the three protected-group candidates because
they did not "demonstrate[ ] themselves to be equally or better qualified" than the
recommended individuals. According to Kapler's notes from the interview, he found

7
The candidates are referred to by their ranking on the eligibility list.

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that Torgerson had "awkward communication"; came across as "unsophisticated"; had
difficulty communicating; in sum, "he lacked the characteristics other applicants
possessed." Kapler also found that Torgerson did not demonstrate anything to make
himself more qualified than the other candidates. Kapler did not recommend Mundell
because during the interview she did not demonstrate that she was more or better
qualified than the candidates at the top of the eligibility list.

The Commission, with all three commissioners present, discussed Kapler's
recommendations on February 27, 2006. Also on that date, Kapler withdrew
recommendations for two additional candidates—Candidate 2 because Kapler did not
expect the results of the candidate's medical examination in time for hiring and
Candidate 5 because he did not have his NREMT certification when the eligibility list
was certified. Of the top 13 candidates, Kapler did not recommend six, leaving the
Commission with only seven recommended candidates (and at least nine are needed
for the "rule of three"). Kapler then requested an additional four candidates for
interviews.

The Commission later voted to permit the three candidates Kapler had not
recommended because they lacked NREMT certification or were not NREMT-registry
eligible—Candidates 3, 5 and 10 (collectively, "non-NREMT candidates") to continue
in the selection process. The Commission decided that the non-NREMT candidates
were eligible for appointment because it determined that the information provided to
candidates regarding the meaning of NREMT "registry eligible" was ambiguous. On
March 15, 2006, Kapler issued a memorandum recommending Candidates 1 through
3 and 5 through 10 for appointment to satisfy the rule of three for seven positions.8
Kapler testified that he changed his recommendation as to the non-NREMT candidates

8
The record does not reflect why Kapler changed his recommendation with
respect to Candidate 2, and appellants do not challenge Kapler's changed
recommendation with respect to Candidate 2.

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"[o]nce the Commission declared them eligible." Kapler made no mention of the
protected-group candidates or Candidates 11 through 13 in his March 15
memorandum. At a Commission meeting on the same day, Withers and Powers voted
to present the candidates as recommended by Kapler to the City Council.
Commissioner Roger Field was not present.

The City Council appointed Candidates 1 through 3 and 5 through 8 as
firefighters on March 20, 2006. Shortly after the City Council's appointments, the
press released the news that Candidate 3 had been convicted of vehicular homicide.
In response to calls from constituents about the appointments, City Councilman Carr
investigated Rochester's hiring process. During the course of his investigation, Carr
came to believe that the SAFER grant required Rochester to seek, recruit, and appoint
women and minorities. Carr testified that he called Field and described the
conversation as follows:

I said—the first question I asked [Field] was are you aware of all of the
terms and conditions of the SAFER grant. And then he said, "What do
you mean?" And I said, "Well, they stipulated you hire women and
minorities." And he said, "I knew nothing of that." He said, "Had I
known, I would have recommended that the City not take the grant." He
said the City should never have taken the grant if that was the stipulation.

At an emergency meeting called to decide whether to reconsider the
appointments based on the appointment of a convicted felon, Carr attempted to discuss
whether Rochester had complied with the SAFER grant. Deputy City Attorney David
Goslee advised the City Council that compliance with the SAFER grant was not a
topic for the emergency meeting. The City Council did not discuss the SAFER grant
and decided not to reconsider the seven appointments, resulting in the hiring of
Candidates 1 through 3 and 5 through 8. At some point Carr also had a conversation

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with Withers, during which time Withers allegedly told Carr that the Commission
wanted to hire Candidate 3 (the convicted felon) because he is a "big, strong guy."9

Torgerson and Mundell filed discrimination charges with the Minnesota
Department of Human Rights (MDHR) and the Equal Employment Opportunity
Commission (EEOC). The MDHR found that the evidence did not substantiate
Torgerson and Mundell's allegations in March, 2007. The EEOC adopted the MDHR's
findings. Torgerson and Mundell then filed suit in district court, asserting claims of
national origin, sex, and race discrimination under Title VII, the MHRA, and § 1981.

Rochester moved for summary judgment, and the district court granted
Rochester's motion. The district court first found that Torgerson's § 1981 claim should
be dismissed because his discrimination claims were based on national origin—not
race—and national-origin discrimination alone is insufficient to support a § 1981
claim.

Next, the district court found that Torgerson and Mundell failed to present
direct evidence of discrimination in support of their Title VII claim. The court
assumed that both Torgerson and Mundell made a prima facie case on the claim, but
found that neither Torgerson nor Mundell presented evidence discrediting Rochester's
reason for not hiring them or offered any evidence giving rise to an inference of
discrimination. The district court, therefore, concluded that the appellants did not meet
their burden of showing that Rochester's stated non-discriminatory reason for not
hiring Torgerson and Mundell—that the appellants scored lower than the hired
candidates during the testing phase and the interview portion showed the appellants
were lacking in qualifications—was mere pretext for discrimination.

9
The record is unclear exactly when this statement was made.

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 II. Discussion
A. Summary Judgment Standard
Torgerson and Mundell argue that the district court erred when it granted
Rochester's motion for summary judgment. The appellants allege that the district
court, contrary to the summary-judgment standard, impermissibly weighed and
evaluated evidence and reached conclusions not proper for summary judgment. The
appellants also argue that the district court used a "pretext plus" standard now rejected
by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Rochester
responds that the district court properly granted its motion for summary judgment
because Torgerson and Mundell presented no evidence that either discredited
Rochester's reason for not hiring them or raised an inference of discrimination, either
through direct or indirect evidence.

We review grants of summary judgment de novo. Wojewski v. Rapid City Reg'l
Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006). "Summary judgment is appropriate
when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law." Id. (internal quotations and citation omitted). Notably,
we have repeatedly emphasized that "summary judgment should be used sparingly in
the context of employment discrimination and/or retaliation cases where direct
evidence of intent is often difficult or impossible to obtain." Wallace v. DTG
Operations, Inc., 442 F.3d 1112, 1117 (8th Cir. 2006); see also Peterson v. Scott
County, 406 F.3d 515, 520 (8th Cir. 2005) ("Summary judgment should seldom be
granted in employment discrimination cases because intent is often the central issue
and claims are often based on inference."); Wheeler v. Aventis Pharm., 360 F.3d 853,
857 (8th Cir. 2004) ("However, in employment discrimination cases, because intent
is inevitably the central issue, we apply the standard with caution."); Breeding v.
Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999) ("Summary judgment
seldom should be granted in discrimination cases where inferences are often the basis
of the claim. . . ."); Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000)
(collecting cases stating same). "We have also stated, however, that no separate

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summary judgment standard exists for discrimination or retaliation cases and that such
cases are not immune from summary judgment." Wallace, 442 F.3d at 1118; (citing
Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999) ("[T]here is no
'discrimination case exception' to the application of Fed. R. Civ. P. 56, and it remains
a useful pretrial tool to determine whether or not any case, including one alleging
discrimination, merits a trial.")).

We have also repeatedly cautioned that summary judgment should not be
granted in "close" cases. "[T]he need to resolve factual issues in close cases is the very
reason we have juries." First Nat'l Bank of Omaha v. Three Dimension Systems
Products, Inc., 289 F.3d 542, 545 (8th Cir. 2002); see also Kehoe v. Anheuser-Busch,
Inc., 995 F.2d 117, 120 (8th Cir. 1993) (reversing grant of summary judgment in "very
close case").

Summary judgment is thus proper "if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c)(2). The movant "bears the initial responsibility of informing the
district court of the basis for its motion," and must identify "those portions of [the
record] . . . which it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its
burden, the nonmovant must respond by submitting evidentiary materials that "set out
specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). In
determining whether summary judgment is appropriate, a court must look at the record
and any inferences to be drawn from it in the light most favorable to the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

B. Alleged Discrimination
Torgerson and Mundell make disparate treatment claims under Title VII and the
MHRA alleging discrimination on the basis of Torgerson's national origin and

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Mundell's sex. Title VII provides that it is "an unlawful employment practice for an
employer . . . to fail or refuse to hire . . . any individual . . . because of such
individual's . . . sex . . . or national origin." 42 U.S.C. § 2000e-2(a)(1). The MHRA
states that "it is an unfair employment practice for an employer, because of
. . . national origin [or] sex . . . to . . . refuse to hire" or "discriminate against a person
with respect to hiring . . . ." Minn. Stat. § 363A.08, subd. 2. The court analyzes
MHRA and Title VII claims using the same standard. See Kasper v. Federated Mut.
Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005).

The two parties here agree that there are multiple ways to prove or disprove a
Title VII claim, either with a showing of direct evidence or by creating the requisite
inference of unlawful discrimination under the framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). See Griffith v. City of Des
Moines, 387 F.3d 733, 736 (8th Cir. 2004).

We have long recognized and followed this principle in applying
McDonnell Douglas by holding that a plaintiff may survive the
defendant's motion for summary judgment in one of two ways. The first
is by proof of "direct evidence" of discrimination. Direct evidence in this
context is not the converse of circumstantial evidence, as many seem to
assume. Rather, direct evidence is evidence "showing a specific link
between the alleged discriminatory animus and the challenged decision,
sufficient to support a finding by a reasonable fact finder that an
illegitimate criterion actually motivated" the adverse employment action.
Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997).
Thus, "direct" refers to the causal strength of the proof, not whether it is
"circumstantial" evidence. A plaintiff with strong (direct) evidence that
illegal discrimination motivated the employer's adverse action does not
need the three-part McDonnell Douglas analysis to get to the jury,
regardless of whether his strong evidence is circumstantial. But if the
plaintiff lacks evidence that clearly points to the presence of an illegal
motive, he must avoid summary judgment by creating the requisite
inference of unlawful discrimination through the McDonnell Douglas

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 analysis, including sufficient evidence of pretext. See, e.g., Harvey v.
Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994).

Griffith, 387 F.3d at 736.

We hold that Torgerson and Mundell created the requisite inference of unlawful
discrimination under a McDonnell Douglas analysis, including sufficient evidence of
pretext, and therefore may present their claims to a jury. See infra part II.B.1.c.

1. Indirect Evidence
Under the McDonnell Douglas framework, the appellants must first make out
a prima facie case for discrimination. 411 U.S. at 802. Then, the burden shifts to
Rochester to "articulate [a] legitimate, nondiscriminatory reason" for not hiring
Torgerson and Mundell. Id. "[T]he ultimate burden [then] falls on [Torgerson and
Mundell] to produce evidence sufficient to create a genuine issue of material fact
regarding whether [Rochester's] proffered nondiscriminatory justifications are mere
pretext for intentional discrimination." Pope v. ESA Serv., Inc., 406 F.3d 1001, 1007
(8th Cir. 2005).

a. Prima Facie Case
The McDonnell Douglas framework requires the appellants to first establish a
prima facie case of discrimination. A plaintiff can establish a prima facie case of
discrimination by showing that

"(i) that he belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii)
that, despite his qualifications, he was rejected; and (iv) that, after his
rejection, the position remained open and the employer continued to seek
applications from persons of complainant's qualifications."

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Sallis v. Univ. of Minn., 408 F.3d 470, 475 (8th Cir. 2005) (quoting McDonnell
Douglas, 411 U.S. at 802).

Rochester argues that Torgerson and Mundell did not make out a prima facie
case because they failed to show that firefighter positions were given to other people
with Torgerson and Mundell's qualifications. In support, Rochester contends that the
people who received the firefighter jobs were not similarly situated to the appellants
because they were ranked higher on the eligibility list due to their higher scores on
both the objective and subjective testing and interviewing. Torgerson and Mundell
bear the burden to prove that the employees ultimately hired were similarly situated
in all relevant respects. Harvey, 38 F.3d. at 972. Torgerson and Mundell did present
evidence showing they had similar qualifications to the candidates who were
ultimately hired, such as similar education and medical certifications.

We recognize that there was a difference—the candidates ultimately hired were
ranked higher on the eligibility list. However, a close review of the record shows that
the rankings were significantly impacted by the subjective interview process, which
accounted for 40 percent of the final score. While the final difference between the top-
weighted score (91.826) and lowest-weighted score (68.120) appears large, the
disparity between the candidates in only the objective portion of the testing was in fact
much closer. Of the 48 eligible candidates, the top score in the objective portion was
55.95, while the low score was 48.60. Conversely, in the subjective interview portion
of testing, the high score was 34.064, while the low was 15.620, a significantly greater
disparity than seen in the objective portion. Again, considering only the objective
written and physical portions of the hiring process, Torgerson's weighted score was
50.85, which put him ahead of the objective score of hired Candidate 8 (50.55) and
tied him with hired Candidate 6 (50.85). Mundell's objective weighted score of 50.25
put her within three-tenths of a point of hired Candidate 8.

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 Finally, while this higher overall ranking is a difference between candidates, it
is not as material as not being qualified for the job, and it is undisputed that all of the
candidates were qualified. Torgerson and Mundell's burden to show that they are
similarly situated and subject to disparate treatment at this prima facie stage is not a
difficult one to prove, and it is appropriate to apply a low-threshold standard. Rodgers
v. U.S. Bank, N.A., 417 F.3d 845, 852 (8th Cir. 2005). "The burden of establishing a
prima facie case of disparate treatment is not onerous." Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To meet this low-threshold standard, Torgerson
and Mundell must show that they possessed similar qualifications to other candidates
and were treated differently, in this case, not hired. Cf. Wheeler, 360 F.3d at 857
(holding that for purposes of evaluating a prima-facie case it is appropriate to consider
whether the employees who are black were involved in or accused of the same or
similar conduct as white employees but disciplined in different ways). We find that
Torgerson and Mundell have met this low standard.

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

b. Legitimate, Nondiscriminatory Reasons
Upon establishment of a prima facie case, the burden shifts to Rochester. "The
burden to articulate a nondiscriminatory justification is not onerous, and the
explanation need not be demonstrated by a preponderance of the evidence." Floyd v.
State of Mo. Dept. of Soc. Servs., Div. of Family Servs., 188 F.3d 932, 936 (8th Cir.
1999). Rochester met this non-onerous burden with its proffered reason for not hiring
Torgerson and Mundell: "[Rochester] did not hire Appellants because both scored
significantly lower than other candidates. It also did not hire Appellants because their
interviews with Chief Kapler only confirmed what the testing phase had shown: both
Appellants were lacking in qualifications as compared to the higher ranking
candidates."

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 c. Pretext for Intentional Discrimination
Torgerson and Mundell argue that Rochester's stated reason for not hiring them
is pretext for discrimination. As a preliminary matter, appellants assert that the district
court held them to an incorrect legal standard when the court ruled that "[t]o succeed
on this claim, Plaintiffs must both discredit [Rochester]'s reason for not hiring them
and show that circumstances permit drawing the reasonable inference that the real
reasons they were not hired were that Mundell is female and Torgerson's national
origin is Native American." The district court cited Johnson v. AT&T Corp., 422 F.3d
756 (8th Cir. 2005), to support this ruling. Johnson stated:

We have recognized that the showing of pretext necessary to survive
summary judgment requires more than merely discrediting an employer's
asserted reasoning for terminating an employee. Johnson is also required
to show that the circumstances permit a reasonable inference to be drawn
that the real reason AT&T terminated him was because of his race.

Id. at 763 (internal citation omitted).

Torgerson and Mundell argue that the district court's ruling is inconsistent with
the standard articulated in Reeves, which stated that

it is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer's explanation.
Specifically, [the Court] stated:

"The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of
the prima facie case, suffice to show intentional
discrimination. Thus, rejection of the defendant's proffered
reasons will permit the trier of fact to infer the ultimate fact
of intentional discrimination."

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530 U.S. at 147 (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511
(1993)).

Reeves thus reaffirmed the Court's previous holding in St. Mary's that the trier
of fact may infer discriminatory intent when the plaintiffs make a prima facie case and
discredit the employer's proffered reason for not hiring them. Reeves requires the
district court to determine whether reasonable inferences of discriminatory intent can
be made. If the evidence is sufficient to permit a reasonable jury to make such
inferences, the jury should be permitted to do so. Reeves does not require district
courts to decide whether or how those inferences should be made only whether they
can be. "Proof that the defendant's explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional discrimination, and it
may be quite persuasive." Id. "In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the employer is dissembling
to cover up a discriminatory purpose." Id.

There are at least two ways a plaintiff can establish a material question of fact
regarding pretext. Wallace, 442 F.3d at 1120. A plaintiff may show pretext with
evidence that the employer's explanation is unworthy of credence because it has no
basis in fact. Id. Alternatively, a plaintiff may show pretext by persuading the court
that a prohibited reason—more than the proffered reason—likely motivated the
employer. Id. Torgerson and Mundell proffer several examples of alleged conduct that
they claim show indirect discrimination: (1) the subjective nature of the hiring
process, including the panel and fire chief interviews; (2) the different standards
Kapler used in the fire chief interviews; (3) Kapler's reference to Torgerson and
Mundell as "unfit"; (4) the hiring of some white candidates with similar or lower
qualifications than the appellants; and (5) the hiring of an additional five white males
after this challenged 2006 hiring process.

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 "Although subjective [hiring] procedures are susceptible of discriminatory
abuse and require close scrutiny, subjectivity alone does not render an employment
decision infirm." Brooks v. Ameren UE, 345 F.3d 986, 988 (8th Cir. 2003) (internal
citation omitted). Rochester's hiring process has several phases; some are objective
and some are subjective. The appellants first challenge each of the subjective
components: the panel interviews and the fire chief interviews.

Looking at the evidence in the light most favorable to the appellants, we ask
if there is a genuine issue of material fact as to whether Rochester's reasons were
pretextual. We hold that Torgerson and Mundell have produced sufficient evidence
that material fact issues remain.

The panel interviews are subjective and weighted to account for 40 percent of
the applicant's final score—the largest single component. The fire chief interviews
were similarly subjective. While these facts alone do not prove that these interviews
became tools of discrimination, the subjectivity involved does warrant scrutiny. Id.
The district court concluded that the controls implemented by Rochester—such as
using representatives from three different divisions of city government, asking
predetermined questions, and using established scoring criteria—ensured that proper
steps were taken to "minimize the panel interview's susceptibility to abuse." Upon
review, we conclude that deciding the efficacy of Rochester's steps to ensure
nondiscriminatory evaluation is, on the facts in this record, better reserved for the jury.
Also, the district court acknowledged that Rochester's subjectivity controls only
minimized susceptibility to abuse, they did not eliminate it. Thus, the material fact of
potential discriminatory abuse of the subjective interview process remains.

Additionally, neither this court nor the district court can determine from the
record whether Torgerson and Mundell received lower scores than other candidates
who gave similar answers. The record is devoid of any notes from these panel

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interviews. The reasons for their absence likely involve fact questions best resolved
by the fact-finding mechanisms which will inhere in the trial.

We apply a similar analysis regarding the subjective nature of the final fire
chief interview. Unlike the panel interviews, there were no controls on the subjectivity
of the fire chief interview. Rochester does not deny that Kapler used a different
standard when interviewing the top candidates and the candidates from the protected
class. While instances of disparate treatment between applicants can demonstrate
pretext, at this stage Torgerson and Mundell must prove they were similarly situated
to the hired candidates "in all relevant respects." Rodgers, 417 F.3d at 853. "[T]he
burden for establishing 'similarly situated' at the pretext stage is rigorous." Wheeler,
360 F.3d at 858. The appellants may not ultimately be able to carry their burden under
this rigorous standard. However, when ruling on a summary judgment motion, we
must only decide if there is a question of fact. Again, we find that such a question
remains.

"Where . . . the employer contends that the selected candidate was more
qualified . . . than the plaintiff, a comparative analysis of the qualifications is relevant
to determine whether there is reason to disbelieve the employer's proffered reason for
its employment decision." Chock v. Nw. Airlines, Inc., 113 F.3d 861, 864 (8th Cir.
1997). "If this comparison successfully challenges the employer's articulated reason
for the employment decision, it might serve to support a reasonable inference of
discrimination." Chambers v. Metro. Prop. and Cas. Ins. Co., 351 F.3d 848, 857 (8th
Cir. 2003). "[A] comparison that reveals that the plaintiff was only similarly qualified
or not as qualified as the selected candidate would not raise an inference of
. . . discrimination." Chock, 113 F.3d at 864.

A comparison in this case shows that Torgerson and Mundell possessed similar
qualifications as the hired candidates, such as having (1) completed ride-alongs with
the Fire Department, (2) college degrees, (3) past experience, and (4) EMT

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certifications. Rochester concedes these similar qualifications but relies on
Torgerson's and Mundell's lower rank on the eligibility list than the hired candidates.
According to Rochester, this lower ranking means the appellants were not similarly
situated. However, appellants claim they sat lower on the eligibility list because they
were discriminated against during the subjective panel interviews. Taking the
eligibility-list ranking out of the equation, Torgerson and Mundell appear similarly
situated to the hired candidates. Based on the record before us, we conclude that there
is a genuine question of material fact whether the subjective panel and fire chief
interview results served as pretext for discrimination.

Torgerson and Mundell also argue that Kapler's description of them as "unfit"
is evidence of discriminatory animus. Kapler made the statement to Carr at a June
2006 meeting. Carr opined that Rochester should not hire anyone else under the
SAFER grant, lest a minority candidate not hired hail the city to court. Kapler
responded that he interviewed Torgerson and Mundell and "found them unfit." When
asked in a deposition if he thought Torgerson and Mundell to be "unfit," Kapler
replied:

Well, I guess it depends on what the word "fit" means. To us it has a
specific connotation. A fitness for duty type of evaluation, mental,
emotional, physical, is all part of a person's fitness for duty. So that's
how I use the word fit. They are—they are on our list as qualified
candidates, so yes, they're qualified to be firefighters.

The district court concluded that "Kapler's distinction between 'qualified' and
'fit' does not give rise to an inference of discrimination." However, "[a]t summary
judgment, because we view the facts in the light most favorable to the non-moving
party, we do not weigh the evidence or attempt to determine the credibility of the
witnesses." Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004).
Here, the district court credited Kapler's proffered explanation of his use of the word
"unfit." On summary judgment, the non-moving plaintiff is entitled to reasonable

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inferences in his or her favor. The conclusion reached by the district court is not the
only reasonable inference from the facts.10 The jury must ultimately decide the
meaning and credibility of Kapler's explanation after a trial on the merits.

2. Direct Evidence
Because we find that Torgerson and Mundell sufficiently established a genuine
issue of material fact as to whether they suffered discrimination by a showing of
indirect evidence of discrimination, we need not decide whether there is direct
evidence of discrimination in this case and instead leave such matters to a jury.

C. Torgerson's § 1981 Claim
Torgerson also claims Rochester violated 42 U.S.C. § 1981 by discriminating
against him "on the basis of his national origin." Section 1981 "protect[s] from
discrimination identifiable classes of persons who are subjected to intentional
discrimination solely because of their ancestry or ethnic characteristics." St. Francis
Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). For example, if an individual is
"subjected to intentional discrimination based on the fact that he was born an Arab,
rather than solely on the place or nation of his origin . . . [then] he will have made out
a case under § 1981." Id. We have interpreted this ruling to hold that § 1981 does not
encompass discrimination claims based upon national origin. Zar v. S.D. Bd. of
Exam'r of Psychologists, 976 F.2d 459, 467 (8th Cir. 1992) ("This claim of
discrimination based upon national origin is insufficient to state a § 1981 claim.").

10
We note that, for whatever reasons, the Fire Department lacks gender and
racial diversity. At the time of this appeal, Rochester had hired only three non-white
firefighters in its recorded history: one Native American who is no longer with the
department; one Asian, who is no longer with the department; and one
African-American. Of the 105 employees at the time of appeal, there are two female
firefighters (1.9 percent) and one non-white firefighter (0.95 percent). The 2000
census reports that, of individuals in the 18 to 39 year-old-age group in Rochester, 45
percent are women and 14 percent are minority.

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 Torgerson argues that his claim is correctly read as stating that he was
discriminated against because he is Native American and that his § 1981 claim should
not be dismissed because claims based on Native-American status have been treated
as both race and national origin claims. Torgerson is correct that a party may bring a
claim of discrimination based on his Native-American status as a claim based on race.
See Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist., 154
F.3d 1117, 1119 n.4 (9th Cir. 1998). We agree that a claim stating that a plaintiff has
been discriminated against because he is a Native American could be sustained under
§ 1981. But a race claim based on Native-American status must be so stated as a race
claim, which Torgerson failed to do. Torgerson's complaint instead states, "Defendant
has discriminated [ ] against Plaintiff in the formation of an employment contract on
the basis of his national origin, in violation of 42 U.S.C. §1981." (Emphasis added).
At no time did Torgerson move to amend his Complaint to include a claim of race
discrimination. Torgerson testified in a deposition that he believes he was
discriminated against because of his national origin, and prior to Rochester's motion
for summary judgment, Torgerson never referred to race in any court documents.
Because Torgerson alleges he was discriminated against based on his national origin,
not race, he cannot sustain a § 1981 claim.

III. Conclusion
Accordingly, we affirm the district court's dismissal of Torgerson's § 1981
claim but reverse the grant of summary judgment on Torgerson and Mundell's Title
VII claim and remand to the district court for further proceedings.

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

I disagree with the Court’s conclusion that Torgerson and Mundell “created the
requisite inference of unlawful discrimination under a McDonnell Douglas analysis,
including sufficient evidence of pretext.” Ante, at 15. In my view, Torgerson and
Mundell do not produce evidence from which a reasonable jury could find that

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Rochester’s stated reason for not hiring them – that they scored lower in the hiring
process than candidates hired – is pretext for discrimination.

There are at least two ways a plaintiff can establish a material question of fact
regarding pretext. Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir.
2006). A plaintiff may show the employer’s explanation is “unworthy of credence,
because it has no basis in fact.” Id. (quotations and citations omitted). A plaintiff
may also show pretext directly, by “persuading the court that a [prohibited] reason
more likely motivated the employer.” Id.

The Court concludes that the following evidence creates a material question as
to pretext: (1) the “hiring of some white candidates with similar or lower
qualifications than the appellants,” (2) the subjective nature of parts of the hiring
process, and (3) Fire Chief Kapler’s reference to Torgerson and Mundell as “unfit.”
Ante, at 19-23.

1. Comparison of qualifications

“Where . . . the employer contends that the selected candidate was more
qualified for the position than the plaintiff, a comparative analysis of the qualifications
is relevant to determine whether there is reason to disbelieve the employer’s proffered
reason for its employment decision.” Chock v. Northwest Airlines, Inc., 113 F.3d
861, 864 (8th Cir. 1997). “[A] comparison that reveals that the plaintiff was only
similarly qualified or not as qualified as the selected candidate would not raise an
inference of . . . discrimination.” Id.

After quoting Chock, the Court states that “Torgerson and Mundell possessed
similar qualifications as the hired candidates.” Ante, at 21. “Similar qualifications”
do “not raise an inference of . . . discrimination.” Chock, 113 F.3d at 864. See also
Lidge-Myrtil v. Deere & Co., 49 F.3d 1308, 1311 (8th Cir. 1995) (“Although

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[plaintiff] does possess the experience and some of the other qualities essential for
success in the position, this does not suffice to raise an inference that [the employer’s]
stated rationale for giving the position to another is pretextual”); Pierce v. Marsh, 859
F.2d 601, 603 (8th Cir. 1988) (“The mere existence of comparable qualifications
between two applicants . . . alone does not raise an inference of . . . discrimination.”).

In Pierce, the Army’s personnel office prepared a list of job candidates in rank
order. The Army hired Stokes (a black male) and Webb (a white female), who ranked
ahead of Pierce (a black male). Pierce sued for race discrimination; the Army
explained that Webb was more qualified, as reflected by her higher rank on the list.
The district court granted summary judgment to the Army.

On appeal, Pierce stressed an exhibit indicating “that his qualifications far
outweigh Webb’s qualifications, thus demonstrating that the Secretary’s legitimate
nondiscriminatory reason for the decision to hire Webb serves as a mere pretext . . .
.” Id. at 603. Reviewing the exhibit, this court concluded that Pierce and Webb had
“relatively similar qualifications,” and “neither candidate appears better qualified for
the foreman position.” Id. “Relatively similar qualifications” were not enough for
Pierce to survive summary judgment. See id. at 604 (“. . . Pierce failed to provide any
evidence from which a rational trier of fact could infer that the selecting committee’s
articulated nondiscriminatory reason for hiring Webb over Pierce was overcome by
any evidence establishing that reason as pretextual.”).

Here, like Pierce, Torgerson and Mundell appeared on an eligibility list, ranked
below the hired candidates. At best, they have “relatively similar qualifications” to
some hired candidates. As in Pierce, “relatively similar qualifications” do not create
a material issue of fact as to pretext.

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 2. Subjectivity of hiring process

“Although subjective [hiring] procedures are susceptible of discriminatory
abuse and require close scrutiny, subjectivity alone does not render an employment
decision infirm.” Brooks v. Ameren UE, 345 F.3d 986, 988 (8th Cir. 2003) (internal
citation omitted).

Torgerson and Mundell emphasize that the panel interviews account for 40
percent of applicants’ scores, and stress the wide range of scores in these interviews.
But they fail to provide any evidence that the interviews were discriminatory. Panels
consisted of one interviewer from Rochester’s human resources department, one from
the Fire Civil Service Commission, and one from the Fire Department. The
interviewers received a list of (human-resources-prepared) questions to ask of all
candidates and were given scoring criteria to evaluate responses. Interviewees
received, in advance, the list of potential questions. Even Torgerson and Mundell
agree that the questions asked were what they anticipated based on the list of possible
questions, and that none of the questions was inappropriate.

After stating that the interviews “warrant [close] scrutiny,” the Court concludes
that “deciding the efficacy of Rochester’s steps to ensure nondiscriminatory
evaluation is, on the facts in this record, better reserved for the jury,” and “the material
fact of potential discriminatory abuse of the subjective interview process remains.”
Ante, at 20. The Court does not refer to any evidence that discrimination took place
11
– only to the “potential” for discrimination in the interviews. Plaintiffs cannot

11
The Court notes that Torgerson scored better than one, and equal to another,
hired candidate on the written and agility tests (and Mundell almost scored equal to
the lowest-scoring hired candidate). Ante, at 16. But the fact remains: “At the end of
the objective written and agility phases . . . Torgerson was ranked 41st and Mundell
was ranked 46th out of 48 candidates.” Ante, at 6. Thus, the interview scores
significantly affected the ranking of other candidates. The interview scores did not

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survive summary judgment by identifying a part of the hiring process where there is
only “potential” for discrimination. Again, “subjectivity alone does not render an
employment decision infirm.” Brooks, 345 F.3d at 988.

In Pierce, as in this case, hiring officials ranked qualified candidates on a list
based on a combination of factors. This court said:

The selecting officials testified by affidavit that subjective factors, i.e.,
their evaluation based on personal observation of the candidates, also
entered into the selection decision. Even if these subjective reasons
could be rejected on credibility grounds, such a rejection of that evidence
would not add anything to the lack of a showing of pretext by Pierce.

Pierce, 859 F.2d at 603-04. Here, the fact that parts of the hiring process were more
subjective does not add anything to the lack of showing of pretext by Torgerson and
Mundell.

The Court notes that “neither this court nor the district court can determine from
the record whether Torgerson and Mundell received lower scores than other
candidates who gave similar answers [in the panel interview],” and concludes the
“reasons for their absence likely involve fact questions best resolved” at trial. Ante,
at 20-21. The burden, however, is on Torgerson and Mundell to provide evidence of
pretext. See, e.g., Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir. 2007)
(If the defendant provides a non-discriminatory reasons for its decision, “the
presumption [of discrimination] disappears, and the burden shifts back to the plaintiff
to show that the proffered reason was pretext for . . . discrimination”); Pope v. ESA
Serv., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005) (“[T]he ultimate burden falls on
[plaintiffs] to produce evidence sufficient to create a genuine issue of material fact

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

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regarding whether [the employer’s] proffered nondiscriminatory justifications are
mere pretext for intentional discrimination.”). Here, a reasonable jury could not infer
pretext from the absence of this evidence. See Pineda v. UPS, 360 F.3d 483, 487 (5th
Cir. 2004) (“To satisfy this burden, the plaintiff must offer some evidence that permits
the jury to infer that the proffered explanation was a pretext for discrimination. The
trier of fact may not simply choose to disbelieve the employer’s explanation in the
absence of any evidence showing why it should do so.”) (internal quotations and
alterations omitted).

Torgerson and Mundell’s objections to the process creating the eligibility list
are unpersuasive. Rochester’s explanation of its hiring decisions has a “basis in fact.”
See Wallace, 442 F.3d at 1120.

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

Torgerson and Mundell may also show pretext by “persuading the court that a
[prohibited] reason more likely motivated the employer.” Id.

City Councilmember Patrick Carr testified that Fire Chief Kapler said he did not
hire Torgerson and Mundell because he “found them unfit.” At his deposition, Fire
Chief Kapler explained his remark, distinguishing “fit” from “qualified.” The Court
states that “the district court credited Kapler's explanation of his use of the word
‘unfit,’” which “is not the only reasonable inference from the facts.” 12 Ante, at 22-23.

Nothing in the record suggests Fire Chief Kapler’s use of “unfit” was based on
national origin or gender. Minnesota law requires “public competitive examinations

12
The Court notes statistical evidence in support of its conclusion. Ante, at 23
n.10. “[S]tatistical evidence will rarely suffice to rebut an employer’s legitimate, non-
discriminatory reasons for a particular adverse employment action.” Bogren v.
Minnesota, 236 F.3d 399, 406 (8th Cir. 2000).

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to test the relative fitness of applicants.” Minn. Stat. § 420.07(2) (emphasis added).
“While we are required to make all reasonable inferences in favor of the nonmoving
party in considering summary judgment, we do so without resort to speculation.”
Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006). “Facially race-
neutral [or gender-neutral] statements, without more, do not demonstrate
[discriminatory] animus on the part of the speaker.” Id. See also Hannoon v. Fawn
Eng’g Corp., 324 F.3d 1041, 1047 (8th Cir. 2003) (“Because the comments regarding
body odor did not suggest any reference to race or national origin, we are unwilling
to hold such comments reasonably capable of supporting an inference of
discriminatory intent.”).

4. Other evidence

Although the Court does not specifically rely on it, other evidence the Court
references does not support an inference of discrimination, when read in context. See
Twymon, 462 F.3d at 934. Councilmember Carr testified that Fire Commissioner
John Withers – who was on the panel that interviewed Torgerson – said he
recommended a convicted felon for a firefighting position because he is “a big, strong
guy.” As Carr makes clear, this statement came in the context of a conversation about
a particular male candidate, not about other applicants.

Councilmember Carr also testified about an exchange with Fire Commissioner
Roger Field:

I said—the first question I asked [Field] was are you aware
of all the terms and conditions of the SAFER grant. And
then he said, “What do you mean?” And I said, “Well, they
stipulated you hire women and minorities.” And he said, “I
knew nothing of that.” He said, “Had I known, I would
have recommended that the City not take the grant.” He

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

As the district court noted, Carr’s description “of the SAFER grant failed to mention
the qualifying language ‘to the extent possible’ . . . . Testimony that Field
recommended against taking a grant that ‘stipulated’ the City hire women and
minorities, regardless of relative qualifications, is not evidence of discriminatory
animus.” As the district court concluded, “Field’s statement is unrelated to any
challenged step in the decisional process . . . .”

Torgerson and Mundell stress that when Fire Chief Kapler conducted the final
interviews of candidates from the top of the eligibility list, he looked only for “red
flags,” but when interviewing those at the bottom (them), he looked for “something
about [them] that would elevate them to the level of being better than the candidates
who were at the top of the list.” This cannot reasonably be construed as
discriminatory because, despite moving on to the fire-chief interview, Torgerson and
Mundell retained their ranks on the eligibility list. As the Court recognizes, “although
all candidates on the eligibility roster meet the minimum qualifications for the
firefighter position, those at the top of the list are recognized as more qualified for the
position than those at the bottom of the list.” Ante, at 4.

***

Torgerson and Mundell fail at step three of the McDonnell Douglas analysis:
they do not offer evidence from which a reasonable jury could conclude Rochester’s
reason for not hiring them was pretextual.

I would affirm the judgment of the district court in all respects, and I therefore
dissent in part.
______________________________

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