Retirement Eligibility Can Be Guise For Age Discrimination

LeRoy Hilde was a lieutenant in the Eveleth, Minnesota Police Department, and was age 51 and retirement-eligible. When the Chief retired in 2012, Hilde applied for the position and was one of four finalists for the job.

The Police Commission’s protocol for hiring the Chief was to score three criteria: Weighted years of service, training and employment, and an interview. Before the interviews, Hilde led with a score of 74; a younger finalist was second with 43 points. After interviewing the candidates, the commissioners asked the departing Chief to leave the room while they deliberated, a request that was not typical. Before leaving, he told them that Hilde was the right choice for the position and that should be “accurately reflected in the scores.” Each commissioner gave the younger finalist perfect 100 scores for his interview, a first according to the Chief. Hilde and the younger applicant thus each had 143 points after the interview, placing them in a tie for the position – also a first.

Two of the commissioners denied (or claimed not to remember) changing Hilde’s scores, although markings on the scoring sheets were altered. A third commissioner stated in his deposition that they had “obviously” agreed on “leveling” Hilde’s interview scores to reach a consensus. The Commissioner also testified that “we were all aware that he was eligible to retire at any point in time that he chose. He was eligible right then; he could have pulled the trigger at any time.”

When the City hired the younger applicant, Hilde sued under the federal Age Discrimination in Employment Act (ADEA). A trial court dismissed the lawsuit, holding that Hilde had not shown enough evidence that the City’s stated reasons for not hiring him were a pretext for age discrimination. Hilde appealed to the Eighth Circuit Court of Appeals.

The Court reinstated Hilde’s claim. The Court started with the proposition that “one purpose of the ADEA is to ensure candidates are evaluated on their merits and not their age. Special case occurs where an employer actually uses a particular event (i.e. retirement eligibility) in making a hiring decision and that event in turn occurs because the person has attained a protected age.

“To assume that Hilde was uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits. The prohibited stereotype – older employees are likely to be less committed to a job because they can retire at any time – figured in the City’s decision. Using retirement eligibility to presuppose lowered productivity or dedication would not represent an accurate judgment about the employee unless evidence other than age indicates that the employee would, in fact, retire.

“The City provides no evidence that the commissioners doubted Hilde’s commitment to the job for any reason but for his age-based retirement eligibility. They admit he had a great reputation in the force and they held his continued service in the highest regard. The City has not met its burden of articulating a nondiscriminatory justification for its reliance on Hilde’s retirement eligibility.”

Hilde v. City of Eveleth, 777 F.3d 998 (8th Cir. 2015).