Skip to main content

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

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...
Post a Comment
Read more

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations
Post a Comment
Read more

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit

MEI-GSR Holdings, LLC - NLRB Facts :  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises. ...
1 comment
Read more