This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Reversed and remanded
Hennepin County District Court
File No. EM03017188
Jeremy D. Sosna, Chad W. Strathman, Strathman & Sosna, P.C., Suite 700, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Charles E. Jones, Erica Gutmann Strohl, Meagher & Geer, P.L.L.P., Suite 4200, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
On appeal from summary judgment dismissing her age-discrimination claim against respondent Minneapolis Golf Club, appellant Linda Stageberg argues that (1) because the record contains sufficient direct evidence of age discrimination to establish a prima facie case, the district court erred by engaging in a McDonnell Douglas analysis, and (2) if a McDonnell Douglas analysis was appropriate, she has raised a genuine issue of material fact as to whether MGC’s articulated non-discriminatory reasons for its actions were pretexts for age discrimination.
Because Stageberg raised a factual dispute about whether MGC’s articulated reasons for not hiring her were pretexts for age discrimination, the district court erred by granting summary judgment to MGC under a McDonnell Douglas analysis. We reverse and remand.
Appellant Linda Stageberg served as the membership director at respondent Minneapolis Golf Club (MGC) from 1996 until she voluntarily resigned in November 2001 to take a similar position at another golf club. The record demonstrates that Stageberg is recognized locally and nationally as one of the most experienced and successful membership directors in the industry. On her last employee evaluation, MGC general manager Jerry Halseth ranked Stageberg “outstanding” in several categories and satisfactory on all of the remaining categories and noted that he would rehire her.
In August 2002, Halseth began discussing with Stageberg the possibility of her return to MGC. Halseth initially favored rehiring Stageberg and received approval to hire her from MGC’s president, who instructed Halseth to get approval from the membership committee and the incoming president, Daniel Metzger. The membership committee members approved or were neutral and indicated that they would defer to Halseth. Metzger, however, wanted to conduct a search for the membership director just as MGC had recently done to find a new golf professional.
The board of directors appointed a selection committee made up of Metzger, David Gollin, Thomas DuPont, Joel Gottesman, and Halseth to choose the new membership director. Before the selection committee began the selection process, Halseth had a conversation with MGC’s office manager, Barbara Dummer, in which, according to Dummer, Halseth indicated that he was resigned to the fact that MGC would not be able to hire Stageberg because Stageberg “was 60 and he didn’t know . . . how much longer she would work.”
The selection committee advertised the position in the newspaper and interviewed four people, including Stageberg. Before the interviews, Halseth expressed to Stageberg that he still wanted her to be a candidate. Stageberg admits that she was nervous at the interview, but she thought that the interview went well. Gottesman also thought that the interview went well. Halseth agreed that Stageberg appeared to be very nervous, but said that she also showed off her experience well. Metzger testified that Stageberg did not meet his expectations for the new role he envisioned for the membership director as focusing on retention instead of acquisition. There is a factual dispute about whether there was any mention of Stageberg’s or Stageberg’s husband’s retirement during the interview.
After the interviews, there was some discussion among selection committee members about how long Stageberg would work due to her husband’s retirement plans. Stageberg was not hired. The person who was hired is 20 years younger than Stageberg with experience in admissions for private schools and colleges, but no experience in marketing and selling memberships for private golf or country clubs.
Stageberg sued MGC, asserting a claim of promissory estoppel and alleging age discrimination under the Minnesota Human Rights Act. MGC moved for summary judgment on both claims, conceding for summary judgment purposes that Stageberg could establish a prima facie case of age discrimination through circumstantial evidence, but arguing that Stageberg failed to raise a genuine issue of material fact on the issue of whether MGC’s articulated legitimate, non-discriminatory reasons for not hiring her were a pretext for age discrimination. The district court granted summary judgment to MGC on both claims. In this appeal, Stageberg challenges only the dismissal of her age-discrimination claim.
“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) (citation omitted). The appellate court “must view the evidence in the light most favorable to the party against whom judgment was granted.” Id. “[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).
The Minnesota Human Rights Act (MHRA) prohibits an employer from discriminating based on age when hiring. See Minn. Stat. § 363A.08, subd. 2 (Supp. 2003). “Discrimination plaintiffs may prove discriminatory intent by direct evidence or by using circumstantial evidence in accordance with the three-part burden-shifting test set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973).” Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 542 (Minn. 2001).
Stageberg argues that she has proved age discrimination by direct evidence and that, therefore, the district court should not have considered the burden-shifting analysis under McDonnell Douglas, which is only necessary when the claim is based on circumstantial evidence. The district court did not directly address this argument and only discussed appellant’s claim that she presented direct evidence of age discrimination in the context of its McDonnell Douglas analysis. Because we conclude that the district court erred by granting summary judgment under a McDonnell Douglas analysis, we decline to address whether Stageberg’s alleged direct evidence was sufficient to preclude a McDonnell Douglas analysis.
MGC concedes that Stageberg has made a prima facie case of age discrimination based on circumstantial evidence under McDonnell Douglas. Under this analysis, once a prima facie case of discrimination is shown, the burden shifts to the defendant to show a legitimate reason, not motivated by discriminatory animus, for the employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Feges v. Perkins Rests., Inc., 483 N.W.2d 701, 711 (Minn. 1992). “This burden is one of production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000) (quotation omitted). The ultimate burden to prove that the employer intentionally discriminated against the plaintiff always remains with plaintiff. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093 (1981). If the defendant meets its burden to articulate legitimate, non-discriminatory reasons for its decision, “the presumption of discrimination evaporates and the plaintiff must prove her case by proving that it is more likely than not that the proffered reason is (1) a pretext for discrimination or (2) not worthy of belief.” Ferges, 483 N.W.2d at 711.
Legitimate, non-discriminatory reasons include not hiring because of lack of qualifications, Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 229 (Minn. 1995) and not hiring because other candidates were better qualified or a better personality match, Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 857-58 (8th Cir. 2003). In this case, MGC asserts that the younger candidate was hired because of her impressive approach to marketing, her team approach to working with MGC members, and her qualifications. Selection-committee members described the person hired as “energetic,” “aggressive,” and “high-energy.” Halseth testified that he liked this candidate better than Stageberg because she “had great chemistry” and “personality.” Stageberg does not contend that MGC failed to meet its burden to articulate non-discriminatory reasons for its hiring decision, but argues that she has raised a genuine issue of material fact concerning whether the reasons advanced by MGC are a pretext or not worthy of belief, making it more likely than not that age was a factor in the decision not to hire her.
In Minnesota, a plaintiff can defeat summary judgment with pretext evidence if the plaintiff shows either direct evidence that the employer had discriminatory motivations or that the employer’s explanation should not be given credence. Hamblin v. Alliant Techsys., Inc., 636 N.W.2d 150, 153 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002). “In some cases, sufficient evidence [of pretext] may consist of only the plaintiff’s prima facie case plus evidence that the employer’s proffered reason for its action is untrue.” Hoover, 632 N.W.2d at 546.
In this case, the district court rejected Stageberg’s claim that she has shown direct evidence that the reasons advanced by MGC were pretexts for age discrimination. But the district court entirely ignored Stageberg’s evidence of Halseth’s pre-interview direct reference to her age as a factor that would prevent her from being hired. And the district court made a finding that comments by the hiring committee about Stageberg’s or her husband’s possible retirement were “not made in furtherance of an ageist stereotype” and therefore did not constitute direct evidence of discriminatory intent sufficient to rebut MGC’s articulated reasons for its decision. In the context of summary judgment, the evidence must be viewed in a light most favorable to the non-moving party, and a finding on the meaning or motivation for comments about retirement is not appropriate.
The district court relied on Cox v. Dubuque Bank & Trust Co., 163 F.3d 492 (8th Cir. 1998), for the proposition that an employer may make reasonable inquiries about age and retirement to reject Stageberg’s claim that the discussion of retirement during the decision-making process is evidence of age discrimination. But Cox does not hold that because an employer can, in some circumstances, inquire about age and retirement that such inquiries cannot be evidence of age discrimination. To the contrary, the Eighth Circuit, in Cox, specifically found that a jury could consider such comments as evidence of age discrimination, but held that the district court erred in that case by failing to instruct the jury that neither the state nor the federal law prohibits an employer from asking the retirement plans of an employee if reasonable under the circumstances. Id. at 497.
In this case, there is a factual dispute about whether Stageberg mentioned or was questioned about her retirement plans or the retirement plans of her husband during the interview. Stageberg claims that no such discussion occurred. A factfinder needs to resolve what was asked or discussed in the interview before it can weigh whether the discussion about retirement plans was reasonable under the circumstances of this case. It is not the place of the appellate court to make credibility determinations of witnesses or testimony. Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986).
And all of the evidence must be examined together in a discrimination case. See Hamblin, 636 N.W.2d at 155 (finding that the combination of statistical evidence, evidence of a discriminatory corporate culture, lack of uniformity in an employee-ranking process, and a sharp drop in plaintiff’s rank, when viewed in the light most favorable to plaintiff, raised the issue of pretext requiring reversal of summary judgment); Futrell v. J.I. Case, 38 F.3d 342, 346 (7th Cir. 1994) (noting while no one factor alone might sustain an age-discrimination claim, their sum permits reasonable inference of discrimination).
Stageberg points to the disparity in age and qualifications between her and the person hired, the committee members’ comments reflecting concern about her age and possible retirement, and evidence refuting allegations that she was not “loyal” and had a “problem” with certain MGC members as evidence that the reasons advanced by MGC are pretextual or not worthy of belief. And Stageberg raises the issue of whether some of the terms used to describe the successful candidate, such as “aggressive,” “energetic,” and “high energy,” are codewords for “younger.” Selection committee members in this case also testified about what was best for MGC in the “long run” and that Stageberg did not represent the “new vision” for the position. See Futrell, 38 F.3d at 347(stating that people often use code words when making age-related, discriminatory remarks). A determination as to the meaning behind the comments about age and retirement and whether certain words were code words cannot be made without making credibility determinations of the witnesses. See Hase v. Missouri Div. of Employment Sec., 972 F.2d 893, 897 (8th Cir. 1992)(reversing summary judgment in age- and gender-discrimination claim because the merits “of each party’s case depends significantly on credibility.”).
The Eighth Circuit has said, “We believe it is common business practice to pick the best qualified candidate for promotion. When that is not done, a reasonable inference arises that the employment decision was based on something other than the relative qualifications of the applicants.” McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (8th Cir. 1998); see also Chock v. Northwest Airlines, Inc., 113 F.3d 861, 864 (8th Cir. 1997) (stating that if the comparison shows the hired candidate to be more or similarly qualified, there is no inference of discrimination).
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.’. . . If this comparison successfully challenges the employer’s articulated reason for the employment decision, it might serve to support a reasonable inference of discrimination. . . . ‘On the other hand, 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 [age] discrimination.’
Chambers, 351 F.3d at 857 (citations omitted).
In this case, the disparity between Stageberg’s direct extensive experience in the position of membership director compared to the successful candidate’s lack of any experience in such a position supports a reasonable inference of discrimination as relevant to the issue of pretext as it is to Stageberg’s prima facie case. The district court stated that it should not “second guess” the business judgment of the defendant, citing Evers v. Alliant Techsys., Inc., 241 F.3d 948, 957 (8th Cir. 2001). But Evers refers to an exercise of business judgment in deciding to reduce its work force and has no application to a district court’s legitimate inquiry into whether the reasons advanced for a hiring decision are pretextual. Viewing all of the evidence in a light most favorable to Stageberg, we conclude that Stageberg has raised a genuine issue of material fact concerning whether the reasons articulated by MGC for failing to hire her were a pretext for age discrimination or not worthy of belief, making summary judgment inappropriate in this case.
Reversed and remanded.