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Employee is Retirement Eligible & You Don't Promote Them Because You Think They Are Uncommitted? Prepare to Defend Against the Impending ADEA Lawsuit!


Hilde v. City of Eveleth - Eighth Circuit Court of Appeals


Facts:  LeRoy Hilde ("Hilde") was a lieutenant on the police force and when the city's Chief of Police retired, Hilde sought the position.  A three panel commission had a protocol for hiring a replacement and scored candidates on three criteria: weighted years of service, training and employment, and an interview.  The facts stated that Hilde was second in command, had the outgoing Chief's support, had spotless credentials, and had been heavily promoted for the past 22 years.  Hilde also had the highest service score of the candidates (73, compared to the next highest score of 43).  

When it came to the interview, the three panel commission gave one candidate, Koivunen, (43 years old) perfect 100 scores on his interview.  However, Hilde (51 years old) got identical 69 point scores.  After the interviews, Hilde and Koivunen subsequently had a total of 143 points each, placing them in a tie for the position.  At one point in the process of finding a new Chief of Police, one of the commissioners on the panel recognized that Hilde's age made him retirement eligible and Hilde "could have pulled the trigger at any time [on retirement]."  At no time did Hilde state he was seeking retirement or would not be committed to the position.  At a meeting with unsuccessful candidates, one of the commissioners stated that Hilde's eligibility for retirement "might have" been a factor in the commission's decision.  

Hilde sued the City of Evelteh ("City") on the basis of violations of the Age Discrimination in Employment Act ("ADEA").  The City moved for summary judgment and the district court granted the motion.

Holding:  The Court of Appeals reversed the district court's granting of summary judgment in favor of the City and held that Hilde could proceed with his ADEA claim.  In particular, the Court recognized that adverse actions based on proximity to retirement can constitute age discrimination, if they are grounded in age stereotyping.  In this instance, the City could not provide any evidence that the commission doubted Hilde's commitment to the job for any reason but for his age based retirement eligibility. 

As well, the Court held a fact issue existed as to the City's contention that Koivunen was simply "the most qualified candidate for the position."  Although it is not a violation of the ADEA for employers to rely upon purely subjective judgments, the City offered no explanation for why Hilde was the most qualified candidate before the interviews then Hilde's interview scores were altered during deliberations to "level the two candidates." 

Judgment:  The Eighth Circuit Court of Appeals reversed the district court's granting of summary judgment in favor of the City and held that Hilde could proceed on his ADEA claim as there were factual issues that the City discriminated against Hilde because of his age. 

The Takeaway:  I think it goes without saying that an employer who assumes that people who are retirement eligible are "uncommitted" to a promotion are taking a real leap of faith (and opening themselves up to endless litigation....).  In this case, the employee appeared to be the ideal candidate in all respects.  However, the fact that he was retirement eligible was the ultimate flaw in the employer's mind...and ultimately what doomed their summary judgment motion in this instance.  

Note to employers, just because an employee is on the edge of qualifying for retirement (or is already retirement eligible), does not give you a green light to assume they are not there for the long haul or are already checked out and therefore unqualified for a position.  Think before making these type of employment decisions!!

Majority Opinion Judge:  Judge Benton

Date:  February 5, 2015

Opinion:  media.ca8.uscourts.gov/opndir/15/02/141016P.pdf

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