Officers Entitled To Trial On Whether Changes In Exam Process Were Pretext For Age Discrimination

Greg Peterson and Souphanny Dean are Richfield, Minnesota police officers. In April 2012, Peterson sued the City, claiming that the Department engaged in age discrimination when it removed him from the special investigations unit earlier that year. A trial court ordered judgment for Peterson on September 19, 2013.

In the fall of 2013, Peterson, Dean, and Brian Rogge, who were all over 40 years old, applied to be eligible for promotion to a detective position with the Department. Andrew Ueland and Rian Jensen, two officers who were in their late 20s or early 30s, also applied for the position. The application process consisted of a written exam and an oral interview. Based on the written exam and oral interviews, the Department ranked the applicants and assigned final scores as follows: (1) Ueland: 70.75; (2) Jensen: 67; (3) Peterson: 56.25; (4) Dean: 55.25; and (5) Rogge: 54.5. Because Ueland and Jensen scored higher than the other officers, they were next in line to receive detective promotions under the Department’s promotional system.

Peterson, Dean, and Rogge sued the City, alleging that the City violated the Minnesota Human Rights Act “changing the promotional process to discriminate against older officers in favor of younger officers and, in fact, promoting two younger officers at the expense of three older officers.” Peterson also alleged that the City retaliated against him by ranking two less-experienced officers above him in the oral interview because he prevailed in his previous age-discrimination lawsuit against the City. Another officer, Jeff Hatzenbeller, also over 40 years old, joined the lawsuit, alleging that the City engaged in age discrimination when the Department denied him a crime-prevention officer assignment.

An appeals court concluded that there was enough evidence of age discrimination to let the officers’ claims go to trial. The Court found that the following evidence raised a jury question as to whether discrimination occurred: “(1) Because the City removed a ‘promoteability index’ and the background and experience sections of the original exam and allocated the majority of the possible total points to the oral-examination, older officers were not able to use their experience and history of positive service; (2) the clustering of points and the disparity of the scores between the older and younger officers on the new exam; (3) the trial court’s determination that the City previously discriminated against Peterson based on age; and (4) the comments of a lieutenant, who approached Rogge after the test and said to him: ‘I don’t want you to go south like other officers who have 18 years of experience,’ and a deputy chief, who said that he did not want the crime-prevention-officer position to become a ‘retirement position.’”

The City argued that the Court should not consider the changes to the detective examination process because the changes occurred more than one year before the officers brought their lawsuit. The Court answered bluntly: “We are not persuaded. Although the new exam was developed and applied to a sergeant-promotion process in 2012, it was not tailored to or applied to the detective-promotion process until 2013. The officers filed their lawsuit in November 2013.

“The City argues that neither the changes in the exam process nor the results of the October 2013 exam support an inference of discrimination. Although it may be true that neither the changes to the exam process nor the results of the October 2013 exam alone would allow a jury to find that the real reason for the City’s action was intentional discrimination, that evidence in combination with the other evidence offered by the officers is sufficient to raise an issue of fact regarding pretext when viewed in the light most favorable to the officers. Reasonable minds could draw different conclusions from the evidence presented.”

Peterson v. City of Richfield, 2016 WL 1081234 (Minn. App. 2016).