Discrimination Suit Against Rochester MN Fire Tossed, But Coincidence is Strange
The Rochester, Minnesota Fire Department has prevailed in a discrimination suit brought by a native American candidate and a female candidate. The decision was issued by the 8th Circuit Court of Appeals on June 1, 2011, ending a roughly five year legal battle.
David Jaye Torgerson, a member of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, and Jami Kay Mundell, allege they were discriminated against in the hiring process for the Rochester Fire Department in 2006 and 2007. The fire department hired 7 firefighters in 2006 and 5 in 2007. Mundell placed 40th and Torgerson ranked 45th.
There’s an interesting (mmmm… strange is probably a better term) coincidence involving this case and another case in the news. Some of the plaintiffs’ accusations of wrongdoing involve decisions made by the then Rochester Fire Chief, David A. Kapler. That is the same Chief Kapler who was the fire chief in Alameda, California until last year. Some allege he is responsible for the 2009 decision to eliminate the fire department’s water rescue program due to a lack of funding. That decision led to a highly controversial incident last Monday where Alameda firefighters, prohibited by their department regulations from going in the water, essentially stood by as a suicidal man drown.
Here is a copy of the decision. Torgerson v. Rochester
The court does a great job of detailing the hiring process and the conduct of the oral interviews. Certainly, it is worth reviewing for chiefs who are involved in organizing oral interviews and selection processes that utilize the rule of three.
The process, which the court upheld, allowed for a modification of the rule of three to permit the inclusion of up to two eligible candidates from each “protected group” for which a disparity exists between the make-up of the Fire department and the City’s affirmative action goals.
One of the central challenges in the case was Chief Kapler’s use of different standards for different candidates. However in the final analysis the court concluded:
In light of the undisputed facts, no reasonable jury could find that Torgerson and Mundell were similarly situated in all relevant respects to the hired candidates. Thus, no reasonable jury could find that the different Fire-Chief-interview standards demonstrate pretext for discrimination.
The 8th Circuit upheld the trial court’s summary judgment in favor of the city.
I got an email question from a chief asking if the court was in essence “approving” of Chief Kapler using two different standards during the interview process. The answer is ABSOLUTELY NOT!!!
Using different standards to evaluate different candidates is totally improper. Furthermore, the court never ruled that the chief used different standards – the court merely said that the plaintiffs alleged it, and offered some evidence to support their allegations.
What the court was saying was that even though the chief “may have” used different standards, the plaintiffs failed to show that they were “similarly situated in all relevant respects” to the candidates who were hired.
Again – a good case for chiefs to reveiw giving you insight into the way that a court may approach your hiring process if it is challenged.
Interesting case. the candidates did not score high enough and their was not any apparent “selective hiring list” established.
Still, the former chief is some “piece of work”. Between here and the City of Alameda.
He seems to have been “Not Fit” for the Alameda job. It’s an island city in San Francisco Bay, and when I tested there in the 70’s and 80’s I had to swim laps in a pool.
Guess he did not take that portion of the test in his Chiefs exam.
The court totally ignored the fact that 3 of the firefighters were to be hired under the SAFER Grant, which stipulated that the city “seek, recruit, and appoint women and minorities.” The court also ignored the issue where 4 of those hired did not even meet the minimum requirements of having an EMT card, including Eric B. Thompson, who was an ex cop who had comitted criminal vehicular homicide, DWI, hit and run, and by Mn law would not have been eligible for a CDL for many years. The decision was power politics, political influence, and corruption at the highest levels. Pat Carr, former member of the Rochester City Council.
Thanks Pat
I know it is frustrating – but I am not suprised. Courts routinely ignore certain facts and issues…. LIKE THE EXISTANCE OF COLLECTIVE BARGAINING AGREEMENTS and minor details like that… to somehow reach the issues they choose to rule upon.
Never attribute to corruption what can be explained by simple incompetence.
With all due respect, this wasn’t even gross incompetence. Eric B. Thompson’s appointment as a firefighter made Rochester Minnesota the only city in the United States that had 2 felons on their fire department; by some coincidence, both being sons of high ranking law enforcement parents.
Pat
The suit alleged discrimination. It is hard to connect the kind of wrongdoing you allege to discrimination. There should be another avenue to bring those kind of abuses to light.
The lawsuit has been docketed in the U.S. Supreme Court #11-273. The facts of this travesty need to be exposed.
Thanks Pat
We’ll have to keep tabs on it. Are the issues you raised above being considered?
8th Circuit Court of Appeals, Case 09-1131: If you read the first decision, you’ll see that the judges broach the issue of “non-EMT candidates” as well as the “vehicular homicide” issue. The issue of the missing interview notes and scoresheets was also raised on I believe page 20. To create a “charade” scenario of this, or any hiring for that matter; and completely rig the process, all you have to do is dumb down the written and physical tests, and the subjective interview process picks the firefighters. Any further problems arise; simple, just destroy the notes and scoresheets of the interviews.
Thanks Pat
As terrible as those things are (and they are terrible) the court may consider them to be collateral to the basis for the case: discrimination. Those issues need to be addressed outside of the discrimination case – and certainly fixing them should not hinge on whether the US Supreme Court takes an interest int hem. The Court very often takes a very narrow view of issues and ignores collateral issues.
Harassment and retaliation of key witnesses is well documented. The case would be a “cut and paste” from currently agreed facts and claims in depositions. I need an attorney in Minnesota that is willing to look at this. Witness tampering was also huge. There were originally 2 women and the native american going forward. One woman, who was a paramedic and had 592 hours of continuing education above and beyond the minimums mysteriously got a prestigious job at the Mayo Clinic, and did not sign on with the case. “You can’t fight city hall” really rings true in Rochester, Minnesota.