Discrimination Suit Against Rochester MN Fire Tossed, But Coincidence is Strange

The Rochester, Minnesota Fire Department has prevailed in a discrimination suit brought by a native American candidate and a female candidate. The decision was issued by the 8^th Circuit Court of Appeals on June 1, 2011, ending a roughly five year legal battle.

David Jaye Torgerson, a member of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, and Jami Kay Mundell, allege they were discriminated against in the hiring process for the Rochester Fire Department in 2006 and 2007. The fire department hired 7 firefighters in 2006 and 5 in 2007. Mundell placed 40^th and Torgerson ranked 45^th.

There’s an interesting (mmmm… strange is probably a better term) coincidence involving this case and another case in the news. Some of the plaintiffs’ accusations of wrongdoing involve decisions made by the then Rochester Fire Chief, David A. Kapler. That is the same Chief Kapler who was the fire chief in Alameda, California until last year. Some allege he is responsible for the 2009 decision to eliminate the fire department’s water rescue program due to a lack of funding. That decision led to a highly controversial incident last Monday where Alameda firefighters, prohibited by their department regulations from going in the water, essentially stood by as a suicidal man drown.

Here is a copy of the decision. Torgerson v. Rochester

The court does a great job of detailing the hiring process and the conduct of the oral interviews. Certainly, it is worth reviewing for chiefs who are involved in organizing oral interviews and selection processes that utilize the rule of three.

The process, which the court upheld, allowed for a modification of the rule of three to permit the inclusion of up to two eligible candidates from each “protected group” for which a disparity exists between the make-up of the Fire department and the City’s affirmative action goals.

One of the central challenges in the case was Chief Kapler’s use of different standards for different candidates. However in the final analysis the court concluded:

In light of the undisputed facts, no reasonable jury could find that Torgerson and Mundell were similarly situated in all relevant respects to the hired candidates. Thus, no reasonable jury could find that the different Fire-Chief-interview standards demonstrate pretext for discrimination.

The 8th Circuit upheld the trial court’s summary judgment in favor of the city.