C3-01-2081

Dr. Roger B. Orensteen,

Appellant,

vs.

St. Cloud State University,

Respondent.

Filed May 21, 2002

Reversed and Remanded

Kalitowski, Judge

Stearns County District Court

File No. C6001727

Eric J. Magnuson, Andrew E. Tanick, Peter D. Gray, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Dr. Roger B. Orensteen, a 71-year-old male, sued respondent St. Cloud State University (SCSU) for age and gender discrimination after it rejected him for a tenure-track professor position and hired Dr. Paula Weber, a 40-year-old woman. See Minn. Stat. § 363.03, subd. 1(2)(a) (2000) (prohibits discrimination in hiring on the basis of gender or age). On appeal from a grant of summary judgment to SCSU, Orensteen argues that the district court erred by concluding that many of the alleged discriminatory statements made by SCSU agents were inadmissible hearsay or stray remarks, and by resolving other disputed issues of fact in SCSU’s favor. Because we conclude that sufficient admissible evidence, both direct and indirect, was presented to raise genuine issues of material fact on Orensteen’s claims of gender and age discrimination, we reverse and remand.

D E C I S I O N

On appeal from summary judgment, an appellate court “must determine whether there are genuine issues of material fact for trial and whether the lower courts erred in their application of the law.” Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001) (citation omitted). A court must view the evidence in the light most favorable to the nonmoving party, id., and must resolve “any doubts of the existence of a material fact * * * in favor of the losing party.” H.B. By and Through Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996) (citation omitted).

Here, in opposition to SCSU’s summary judgment motion, Orensteen cited numerous statements by SCSU’s agents and employees, including the dean of the college, the department chair, the affirmative action officer, and members of the faculty search committee. The district court refused to consider many of these statements, determining that they were inadmissible hearsay or mere “stray remarks,” made by individuals with no authority to bind SCSU to this hiring decision.

But the statements at issue were made by SCSU employees with firsthand, personal knowledge of the process and decision-making that resulted in the hiring of Weber rather than Orensteen. See Minn. R. Civ. P. 56.05 (“affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”). And under Minn. R. Evid. 801(d)(2)(D), these statements are not hearsay if “offered against a party” and made “by the party’s agent or servant concerning a matter within the scope of the agency or employment[.]” Id.; see also 1989 committee cmt. (rule 801(d)(2)(D) “rejects the strict agency theory in determining whether or not the statement is admissible” and “requires only that the statement be made concerning a matter within the scope of the agency”). Because these statements were made by SCSU agents “intimately involved” in the decision-making process that led to the challenged decision, they are admissible under rule 801. See Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir. 2001) (“Significant involvement, either as advisor or other participant in a process leading to a challenged decision, may be sufficient to establish agency under [rule] 801(d)(2)(D).” (quotation omitted)).

Nor are these statements mere “stray remarks,” insufficient to show discriminatory intent on the part of SCSU. It is true, as SCSU argues, that statements by individuals not in a position to make a challenged decision may not provide direct evidence of discrimination. See Yates v. Douglas, 255 F.3d 546, 548-49 (8th Cir. 2001); Diez v. Minn. Min. & Mfg., 564 N.W.2d 575, 579 (Minn. App. 1997), review denied (Minn. Aug. 21, 1997). But a defendant cannot filter illegal discrimination through a straw decision-maker with no apparent animus of his own. See Hamblin v. Alliant Techsystems, Inc., 636 N.W.2d 150, 154 (Minn. App. 2001) (stating “a prejudiced corporation cannot insulate itself by using front-end managers subject to executive pressures”), review denied (Minn. Feb. 19, 2002). Here, although SCSU President Bruce Grube was the ultimate decision-maker, he admitted that he had no recollection of his decision to hire Weber and stated that he typically adopted the hiring recommendations of the dean. Under these circumstances, the statements offered by Orensteen were admissible and should have been considered by the district court.

II.

A plaintiff may prove discriminatory intent by either direct or circumstantial evidence. Goins v. West Grp., 635 N.W.2d 717, 722-24 (Minn. 2001); Hoover, 632 N.W.2d at 542. In either case, a plaintiff who has established a prima facie case can survive summary judgment by producing admissible, competent evidence that creates a genuine issue as to whether the defendant’s stated reasons were mere pretext for discrimination. See Hoover, 632 N.W.2d at 545-46; Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 229 (Minn. 1995).

Here, direct evidence of discriminatory intent was presented by: (1) statements to the search committee that it needed to have a woman among the final three after one of the finalists withdrew from consideration; (2) Dean Eli Malekzadeh’s statement to a secretary in the affirmative action office that he would not offer the job to Orensteen, even before he had received any recommendation from the search committee; and (3) statements to Orensteen by members of the search committee, who had unanimously recommended Orensteen over Weber, that SCSU administration rejected him because he is male. These statements and others suggest direct discrimination on the part of SCSU and placed the burden on SCSU to prove a legitimate nondiscriminatory reason for not hiring Orensteen. See Goins, 635 N.W.2d at 722 (direct evidence shows that “employer’s discrimination was purposeful, intentional or overt” and consists of a “statement or a policy [that] is discriminatory on its face” (citations omitted)).

SCSU claimed that it rejected Orensteen and hired Weber because Weber’s research and publication record was more recent and superior to Orensteen’s and because Weber’s superior record on these points would benefit SCSU’s attempt to retain its accreditation from the AACSB (American Assembly of Collegiate Schools of Business). Orensteen argues that he has produced sufficient evidence to question whether these reasons are worthy of credence or mere pretexts for discrimination. Even if SCSU establishes that it had a nondiscriminatory reason for making an employment decision, Orensteen “may nevertheless prevail if an illegitimate reason ‘more likely than not’ motivated the * * * decision.” McGrath v. TCF Bank Sav. FSB, 509 N.W.2d 365, 366 (Minn. 1993) (quoting Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn. 1988)).

Orensteen provides ample evidence from which a jury could question SCSU’s claim that it rejected Orensteen and decided to hire Weber based on her superior record of recent research and publication. First, Orensteen notes that SCSU’s stated mission is “teaching first, research second” and that the form used by faculty to evaluate candidates did not even list research as a separate criterion, but included it under “research and/or business experience.” Orensteen next cites his “established and impressive research and publication record,” even though that record arises from works published in the 1950s and 1960s. Orensteen further questions whether Weber’s publication record is superior to his, given the fact that (1) many of her articles were unrelated to the courses to be taught in this position; (2) many were co-authored by her husband; (3) most were published in lower-tier sources; and (4) many were only a few pages long. Finally, Orensteen reasons that if research and publication were so important, then SCSU would have considered another applicant, Stephen Maranville, as a finalist because Maranville’s publication record was far superior to Weber’s. See Ridler v. Olivia Pub. Sch. Sys. No. 653, 432 N.W.2d 777, 783 (Minn. App. 1988) (employer’s failure to interview candidate possessing alleged qualifications was evidence of pretext).

Orensteen points to other evidence of pretext, including the affirmative action office’s history of insisting that search committees interview women candidates and its stated goals in other postings to “hire a qualified woman, minority, or disabled person.” Even the affirmative action officer admitted during her deposition that such statements are “troubling” because they could be misinterpreted by a search committee as an improper directive to include women among the finalists. See Bass v. Bd. of County Comm’rs Orange County, Fla., 256 F.3d 1095, 1110 (11th Cir. 2001) (“government employer commits unlawful discrimination when it takes [gender] into account in an employment decision and acts pursuant to an invalid affirmative action plan”).

Further, SCSU claims that it was concerned about “underutilization” of women in faculty positions. But several documents fail to show any underutilization, including SCSU’s decision, which rejected Orensteen’s internal discrimination complaint and stated that the affirmative action office “does not reveal an under-utilization of women” in the business college, and a letter and report from the AACSB, which discuss faculty publication efforts but do not specifically mention any concerns over a lack of female faculty members.

Finally, Orensteen argues that pretext is shown in evidence that SCSU: (1) failed to follow its own policies, including its decision to include Weber as a finalist, even though under SCSU’s own written guidelines she could only be elevated if the first choice for the position declined; (2) made Weber an offer, even though her application file was incomplete; and (3) claimed to reject Orensteen based on his lack of “recent” publications, when that requirement was not even listed in the original notice of vacancy.

Because the evidence presented by Orensteen would allow a rational trier of fact to infer that SCSU engaged in intentional discrimination, we conclude that the district court erred in granting summary judgment to SCSU on Orensteen’s gender discrimination claim. See Hoover, 632 N.W.2d at 546-47 (stating plaintiff has burden to show defendant’s conduct was based on unlawful discrimination).

III.

Orensteen argues that he has produced sufficient circumstantial or indirect evidence of age discrimination. We agree. Orensteen cites evidence that presents genuine issues as to whether SCSU’s reasons for not hiring him are mere pretext. First, he asserts that SCSU bent several of its rules for the benefit of younger applicants, including Weber, who was not properly included among the finalists after one withdrew. Orensteen further cites to Dean Malezadeh’s question to two search committee members regarding which of the two candidates (Weber or Orensteen) is more likely to fulfill the research requirements and obtain tenure in five years. Orensteen characterizes this question as an age-related comment that is probative of SCSU’s discriminatory motive. See Krodel v. Young, 748 F.2d 701, 710 (D.C. Cir. 1984) (stating age related comments are probative of discriminatory motive). Malekzadeh explained that he would have asked this question of any candidate because “my job as a Dean [is] to make sure the candidate succeeds in five years, that is based on their previous records and projection of that to the future.” We conclude that sufficient evidence on the issue of pretext has been presented to survive summary judgment.

The district court’s grant of summary judgment to SCSU on Orensteen’s claims of gender and age discrimination is therefore reversed and remanded for further proceedings. Because the district court did not reach SCSU’s claim that it was entitled to dismissal of Orensteen’s claims under the doctrine of vicarious official immunity, we decline to address this issue on appeal.

Reversed and remanded.