This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Donald R. Banham, Jr.,



Robert Olson, et al.,


Filed July 21, 1998


Randall, Judge

Hennepin County District Court

File No. EM 96-008044

Clayton M. Robinson, Jr., Six West Fifth Street, Suite 700, St. Paul, MN 55101 (for appellant)

Jay M. Heffern, Minneapolis City Attorney, Caroline M. Bachun, Larry L. Warren, Assistant City Attorneys, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for respondents)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Holtan, Judge.[*]


Appellant Donald R. Banham, Jr. argues that the district court erred in finding that respondents Chief of Police Robert Olson and the City of Minneapolis established legitimate and nondiscriminatory reasons for their promotional decision. The district court found that Banham failed to rebut Chief Olson's asserted nondiscriminatory reason for his promotional decision. The district court further concluded that Banham failed to prove he was denied a promotion because of race. We affirm.


In 1992 Banham applied for a promotion to lieutenant with the Minneapolis Police Department. At that time Banham was ranked thirteenth on the list of eligible candidates. Daniel Grout and Gerald Schroeder were ranked eleventh and twelfth on this list. Grout and Schroeder are white; Banham is black.

As a result of a grievance filed by the Police Officers Federation of Minneapolis an arbitrator directed the City of Minneapolis (City) to

assign a full-time lieutenant to [the Public Housing] unit and to make any applicable or resulting promotion from the list of eligibles which existed at the time of the grievance, before the July 1994 expiration.

The City was given this order on January 12, 1995. At that time, the individuals that ranked one through ten on the 1992 list of eligible candidates had already been promoted to lieutenant. That left Grout, Schroeder, and Banham, in that order, as the top three candidates.

Based on the language contained in the arbitrator's decision, it was Chief Olson's understanding that he "go back in time" to when the promotion should have been made. Chief Olson inquired as to what was the custom and practice for hiring in 1992. He was informed that his predecessor Chief John Laux had promoted the top ten ranked individuals on the 1992 eligible lieutenant list using the top-down approach. Under this method, the top-ranked individual is chosen for the promotion absent any negative background information. Using this approach, Chief Olson promoted Grout to the position of lieutenant. Grout was ranked number one of the remaining eligible candidates and there was nothing negative in his background. Olson also found Grout more qualified than applicants two and three (Schroeder and Banham) because Grout had more education and more experience.

Shortly thereafter, Banham met with Larry Blackwell, Director of Affirmative Action and Diversity Programs for the City, to discuss his concerns over Chief Olson's use of the top-down approach. Blackwell sent a memorandum to Chief Olson suggesting that instead of using the top-down approach, Olson should use the "rule-of-three" approach, claiming it followed Affirmative Action Selection Guidelines (Guidelines) adopted by the city on May 3, 1994. Under the "rule-of-three" approach, if the top three individuals are equally qualified, and protected groups are underrepresented, the promotion should be given to the individual from the protected group. According to the Guidelines, before a manager makes a promotion, he should speak with the Affirmative Action Division to determine if there are any unmet affirmative action goals for the position in question. If there are, and "[i]f the protected class candidate is similarly qualified with a top ranking non-protected class candidate, the protected class candidate should be appointed."

After Chief Olson announced his decision to promote Grout, Banham filed suit alleging that the City and Chief Olson violated his civil rights under the Minnesota Human Rights Act. The basis for Banham's claim was that Chief Olson refused to promote him to lieutenant because of his race. The district court found that while Banham established a prima facie case of discrimination, Chief Olson advanced legitimate nondiscriminatory reasons for his decision to appoint Grout rather than Banham. The district court determined that Banham failed to meet his burden of proving that Chief Olson's stated reasons for not promoting Banham were a pretext for discrimination. Judgment was entered in favor of the City and Chief Olson. This appeal followed.


If a party fails to make a motion for a new trial before appealing from a judgment, this court's review is limited to whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and judgment. Doan v. Medtronic, Inc., 560 N.W.2d 100, 104 (Minn. App. 1997), review denied (Minn. May 14, 1997). In the employment discrimination context, Minnesota courts have traditionally accorded great deference to the district court in regard to its findings of fact. Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986). District courts are generally in the best position to observe the witness first hand, and to judge the weight and credibility of the evidence. Id.

The Minnesota Human Rights Act prohibits employers from discriminating against their employees on the basis of race. Minn. Stat. § 363.03, subd. 1(2) (1996). In evaluating discrimination claims, courts apply the three-pronged McDonnell Douglas test. Sigurdson, 386 N.W.2d at 719-20 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)). First, the court must determine whether the plaintiff has established a prima facie case of discrimination; then the court must decide whether the defendant has produced a legitimate, nondiscriminatory reason for its acts; finally, the court decides whether the plaintiff has shown that the defendant's reasons were actually a pretext for discrimination. Doan, 560 N.W.2d at 104-05.

Because Banham was a member of a protected class, both sides agree the mechanical guidelines of establishing a prima facie case of race discrimination under the Minnesota Human Rights Act were met. Because a prima facie case was established, the burden shifted to Chief Olson to provide legitimate nondiscriminatory reasons for his actions. See Sigurdson, 386 N.W.2d at 720 (stating second step in McDonnell Douglas test is for employee to present evidence of legitimate, nondiscriminatory reason for actions). The district court concluded that Chief Olson met that burden, and we agree.

The district court found that Chief Olson's decision to use the top-down approach was based on the fact that it was the procedure used by Chief Laux when Laux made the promotions from the 1992 list of eligible candidates. The arbitrator instructed the city to

assign a full-time lieutenant to [the Public Housing] unit and to make any applicable or resulting promotion from the list of eligibles which existed at the time of the grievance.

Even though the arbitration award was silent on the procedures used for promoting a lieutenant it was clear that Chief Olson was required to use the 1992 list of eligible candidates. Because Chief Olson was required to use the 1992 list of eligible candidates he tried to recreate the then existing situation by implementing the top-down approach.

Further, Chief Olson concluded that Grout was the most qualified for the position based on education and experience. Grout, at all times, had been ranked ahead of Schroeder and Banham on the list of eligible candidates.

Since Chief Olson offered legitimate reasons for hiring Grout over Banham the burden shifted back to Banham to prove that the proffered reasons were a pretext for discrimination. See Sigurdson, 386 N.W.2d at 720 (stating third step in McDonnell Douglas test is for plaintiff to show employer's stated reason was pretext for discrimination). Banham must persuade the court by a preponderance of the evidence that Chief Olson's actions were motivated by discrimination or by showing that Chief Olson's reasons are not worthy of belief. See Id. (stating plaintiff must prove intentional discrimination by preponderance of evidence and stating burden may be met by proving employer motivated by discriminatory reason or proving employer's explanation not worthy of belief).

Banham claims that Chief Olson's "intentional failure" to follow the Guidelines establishes discriminatory intent. We conclude that Chief Olson did not intentionally fail to comply with the Guidelines. First, he was employing the promotional method utilized by his predecessor Chief Laux. The top-down approach was appropriate under these circumstances. As stated in the district court's conclusions of law "there is no evidence before the court that Chief Olson's decision not to promote [Banham] was the result of racial animus."

Banham argues that Chief Olson was "required" to use the rule-of-three method of hiring because utilization of the Guidelines approach was mandatory. In support of his position Banham points to Blackwell's testimony. While Blackwell did testify at one point that this policy is "mandatory" this contradicted an earlier statement Blackwell made indicating that Guidelines' policy was "strictly voluntary." Ann Eilbracht-Thompson, Director of Human Resources, offered a different interpretation of the Guidelines. Her reading of the Guidelines was that individuals are encouraged to adopt this principle and they should consider it, but it "does not carry the weight of a mandatory requirement." It is settled that it is the trier of fact's role to judge the credibility of witnesses. Minn. R. Civ. P. 52.01. The district court chose to credit Eilbracht-Thompson's testimony regarding whether the rule-of-three approach was mandatory. This was easily within the discretion afforded a district court, particularly in light of Blackwell's inconsistent statement regarding the nature of the Guidelines.

Given our standard of review, the district court's detailed findings of fact, and its well-reasoned conclusion, the district court did not err in finding that Chief Olson established legitimate and nondiscriminatory reasons for his promotional decision. Banham failed to prove that the department's reason for promoting Grout was a pretext for discrimination.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.