Age Gap between Candidates Too Small to MeetThreshold forAge Discrimination

Eight-Year Age Gap between Candidates Found Too Small to Meet Threshold for Age Discrimination Claim

By Jerry L. Pigsley, Harding & Shultz, P.C., L.L.O.

Have you committed an age discrimination claim when you hire a younger worker?Afederal court in Minnesota recently addressed this issue. Hilde v. City of Eveleth, Case No. Civ. No. 12-2794 (D. Minn. December 4, 2013). Leroy Hilde sued the City of Eveleth, Minnesota alleging he was passed over for the police chief position due to his age in violation of federal and state age discriminationlaws.HildeworkedfortheCityasapolice officerfor29years,servingasthesecondhighestranking officer since 1998. In January 2012, the City ’s police chief announced his intention to retire effectiveApril 30. Hilde was among five applicants for the police chief opening and was not selected.

The Police Commission selected Tim Koivunen, a detective from another Minnesota police department. At the time of the Commission’s decision, Koivunen was 43 and Hilde was 51. Hilde pointed out that the sole fact that Koivunen was younger than him proved age was a factor in the employer’s decision. However, the court wrote:

[H]iring a younger worker may well suggest, in appropriate circumstances, that age was a factor in the employer’s decision. But context is everything, and in theCourt’sview,oftenitwillnotsufficeforaplaintiff simply to point to the chosen candidate and exclaim, “He’s younger!”

The court found the “cases require evidence showing that the selected candidate was substantially or significantly younger. ” Indeed, the Eighth Circuit (controlling in South Dakota), has held an eight-year age gap is too small to meet the “substantially younger” threshold. See Chambers v. Travelers Co., 668 F.3d 559, 566 (8th Cir. 2012).

The court went on to find that assuming Hilde had establishedaprimafaciecaseofagediscrimination,itstill would have rejected his claims because he failed to offer

sufficientevidencetocreateajuryquestionastotheCity ’s reason for its decision to hire the younger Koivunen.

This case demonstrates for municipalities that a rejected candidate may have a triable discrimination claim even if the selected candidate is also within the statutorily protected age group of those age 40 or older. But in order to raise a reasonable inference that age was a factor, a rejected candidate must show that the successful candidate was “substantially younger. ” An eight-year difference accordingtothiscourtandtheEighthCircuitisinsufficient to raise an inference of age bias.

Editor’sNote: This article is not intended to provide legal advice to our readers. Rather, this article is intended to alert our readers to new and developing issues and to provide some common sense answers to complex legal questions. Readers are urged to consult their own legal counsel or the author of this article if the reader wishes to obtain a specific legal opinion regarding how these legal standards may apply to their particular circumstances. The author of this article, Jerry L. Pigsley, can be contacted at 402-434-3000, or at Harding & Shultz, P.C., L.L.O., P.O. Box 82028, Lincoln, NE 68501-2028, jpigsley@hslegalfirm.com.

Nominate Deserving Operations Specialists from your Water or Wastewater System

The South Dakota Water & Wastewater Association (SDWWA) annually presents awards in various categories to deserving operations specialists in South Dakota.AllnominationsmustbemadebyJuly15.

Awards are presented at the SDWWA Annual Conference which is being held September 17-19, 2014attheWatertownRamkotaandWatertownEvent Center.

Aperson does not have to be in attendance to receive an award. A nominating form and more info can be foundattheSDWWAwebsite,www.sdwwa.org.