Filed: Dec. 07, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2063 TIFFANYE WESLEY, Plaintiff - Appellant, v. ARLINGTON COUNTY, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:08-cv-00007-CMH-JFA) Argued: September 22, 2009 Decided: December 7, 2009 Before WILKINSON and MICHAEL, Circuit Judges, and Irene M. KEELEY, United States District Judge for the Northern District o
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2063 TIFFANYE WESLEY, Plaintiff - Appellant, v. ARLINGTON COUNTY, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:08-cv-00007-CMH-JFA) Argued: September 22, 2009 Decided: December 7, 2009 Before WILKINSON and MICHAEL, Circuit Judges, and Irene M. KEELEY, United States District Judge for the Northern District of..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2063
TIFFANYE WESLEY,
Plaintiff - Appellant,
v.
ARLINGTON COUNTY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:08-cv-00007-CMH-JFA)
Argued: September 22, 2009 Decided: December 7, 2009
Before WILKINSON and MICHAEL, Circuit Judges, and Irene M.
KEELEY, United States District Judge for the Northern District
of West Virginia, sitting by designation.
Reversed and remanded by unpublished per curiam opinion. Judge
Wilkinson wrote a separate dissenting opinion.
John R. Ates, ATES LAW FIRM, PC, Alexandria, Virginia, for
Appellant. Louise Marie DiMatteo, COUNTY ATTORNEY’S OFFICE,
Arlington, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tiffanye Wesley (“Wesley”), who is an African-American
female, began her career as a firefighter with the Arlington
County Fire Department (“Department”) in 1994. After several
years’ experience riding a fire truck, serving as a training
center instructor and in other administrative roles, Wesley
began the process of competing within the Department for the
position of Captain. Although she met all of the minimum
objective criteria to be eligible for promotion, and had twice
passed both a written test and an experiential assessment
designed to simulate the challenges faced by a Captain, the
Department Fire Chief did not promote her.
Following denial of these promotions, Wesley filed an
internal grievance, a complaint with the Equal Employment
Opportunity Commission (“EEOC”), and, ultimately, this action,
claiming that the Department had denied her the promotions based
on race and gender in violation of Title VII of the Civil Rights
Act.
The district court granted the Department’s motion for
summary judgment, holding that Wesley had not produced
sufficient evidence under the first prong of the burden-shifting
framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to support a prima facie case of discrimination because
she could not show that she was objectively qualified for the
2
position of Captain. In the alternative, it analyzed the second
and third prongs of the McDonnell Douglas framework and
concluded that, even if Wesley were qualified, the Department
had met its burden of producing a non-discriminatory
justification for not promoting her, and Wesley had not shown
that justification to be pretextual. 1
Wesley urges this Court to overturn the district court’s
award of summary judgment to the Department. Because we find
that Wesley was qualified for the position of Captain, and
produced evidence sufficient to support a jury finding that the
Department’s proffered reasons for non-promotion were mere
pretext, we reverse the district court’s grant of summary
judgment and remand the case for trial.
I.
Wesley’s work experience includes periods within several
units of the Department. For most of the first five years of her
career, beginning in 1994, Wesley worked in “operations.” 2 The
1
On appeal, the parties do not dispute that the Fire
Department met its burden of producing a non-discriminatory
reason for its decision not to promote, as required under the
second phase of the McDonnell Douglas burden-shifting regime. We
agree.
2
Wesley was out of operations for approximately seven
months on maternity leave and subsequent light duty.
3
Department defines operations positions as those on fire trucks,
ambulances, and other front-line assignments. Wesley gained her
operations experience on the crew of a fire truck.
In 2000, Wesley asked for and received an instructor
assignment at the Department’s training academy. Over the
following six years, she spent 20 months at the academy, 46
months in other administrative positions (including community
relations and building inspection), and 27 additional months in
operations. She is currently a Deputy Fire Marshal with the
3
Department.
The Department has established a three-stage process for
promotion purposes. First, applicants who meet the minimum
qualifications in terms of years of experience and education may
take a written examination. The top scorers on this exam then
attend an assessment center that tests practical skills. From
the results of the assessment center, the human resources office
prepares and certifies a list of “qualified” individuals and
forwards it to the Fire Chief for final promotion decisions.
3
The Department initially denied Wesley promotion to this
post as well. After she raised the issue in her EEOC complaint,
however, the Department promoted Wesley to the position; thus
the initial denial is not at issue in this case.
4
After receiving this certified list of candidates eligible
for promotion, the Fire Chief convenes what is known as a
roundtable. The roundtable is a discussion among senior
Department personnel about the strengths and weaknesses of each
candidate. Finally, the Fire Chief chooses the candidates who
will be promoted.
After Wesley received high scores on the written exam and
at the assessment center, she twice successfully secured a place
on the certified list for the position of Captain. As a result,
she was eligible for promotion essentially any time between 2001
and 2005. She was never promoted to Captain, however. According
to deposition testimony and affidavits of the Fire Chief and
other senior personnel, the Fire Chief decided not to promote
Wesley because participants at the roundtables voiced concerns
about her job abilities, experience and performance. Wesley has
produced competing accounts of the conversations and disputes
that these concerns were raised.
Either before or during the roundtables, reviewing officers
received a promotional sheet for each candidate on which they
could note an applicant’s strengths and weaknesses.
Unfortunately, no completed promotional sheets pertaining to
Wesley are available for review as the Department destroyed
them, an act Wesley contends violated Title VII and EEOC record-
5
retention regulations. 4 See 42 U.S.C. § 2000e-8(c), 29 C.F.R. §
1602.31.6.
II.
We review the district court’s grant of summary judgment de
novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 283 (4th Cir. 2004). In doing so, we must construe the
evidence and any inferences in the light most favorable to
Wesley, the non-moving party. See Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 255 (1986).
III.
The district court granted summary judgment to the
Department on two grounds. First, it held that Wesley had failed
to prove a prima facie case of discrimination; alternatively, it
found that she had failed to rebut the Department’s proffered
4
Wesley argues that the promotional sheets were “personnel
or employment record[s] made or kept by a political
jurisdiction,” which must be retained for two years and during
the pendency of any charge of discrimination. 29 C.F.R. §
1602.31. We need not find that a violation of the recordkeeping
law occurred to reach our decision in this case. However, the
Department offers no argument against such a finding beyond
claiming that Wesley did not raise the issue in the district
court and thus waived it on appeal. Wesley notes that she raised
the issue in her memorandum opposing summary judgment.
6
non-discriminatory reasons for not promoting her. We address
each finding in turn.
A.
The district court found that Wesley failed to produce and
forecast sufficient evidence to prove she was qualified for the
position of Captain. Following a review of the record in the
light most favorable to Wesley, we conclude otherwise.
Under the McDonnell Douglas framework, [a plaintiff]
can establish a prima facie case by showing that (1)
she is a member of a protected group, (2) she applied
for the position in question, (3) she was qualified
for that position, and (4) the defendants rejected her
application under circumstances that give rise to an
inference of unlawful discrimination.
Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268
(4th Cir. 2005). Only the third requirement, qualification, is
at issue in this case. As an African-American female, Wesley is
a member of a protected group, and she applied for promotion to
Captain through the proper Department procedures. Previously, we
have held that the fourth element, “an inference of unlawful
discrimination,” is satisfied where a position is filled by an
applicant outside the protected class. Carter v. Ball,
33 F.3d
450, 455 (4th Cir. 1994). In this case, several white male
firefighters were promoted to Captain instead of Wesley.
The Supreme Court has characterized a plaintiff’s initial
burden in a Title VII case under McDonnell Douglas as “not
onerous.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248
7
(1981). Accordingly, we have described the threshold as
“relatively modest,” Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333
F.3d 536, 545 (4th Cir. 2003)(internal quotations and citations
omitted), and as a “relatively easy test” that may be satisfied
even when there is “no clear-cut indication that race played a
part in choosing the successful applicant.” Young v. Lehman,
748
F.2d 194, 197 (4th Cir. 1984).
Wesley urges this Court to adopt a bright-line rule
preventing employers from using subjective qualifications in
establishing the requirements of a job. Several of our sister
circuits agree with this limitation. See, e.g., Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005);
Johnson v. Louisiana,
351 F.3d 616, 622 (5th Cir. 2003); Wexler
v. White’s Fine Furniture,
317 F.3d 564, 575 (6th Cir. 2003)(en
banc); Jayasinghe v. Bethlehem Steel Corp.,
760 F.2d 132,
135 (7th Cir. 1985); Burrus v. United Tel. Co. of Kan., Inc.,
683 F.2d 339, 342 (10th Cir. 1982); Lynn v. Regents of U. of
Cal.,
656 F.2d 1337 (9th Cir. 1981).
In contrast, the Third Circuit, in Fowle v. C & C Cola, 868
F.2d 59 (3d Cir. 1989), has held that a bright-line test is
undesirable and that, in certain contexts, “there could be
situations where subjective qualifications could be considered
as part of the prima facie case.”
Id. at 64.
8
We need not decide this question here. Even under the more
flexible holding of Fowle, subjective evidence is appropriate
only in exceptional cases, such as where no objective facts are
available or appropriate.
Id. Here, there is sufficient
objective evidence in the record to analyze Wesley’s
qualifications for the position of Captain.
By all accounts, Wesley met the minimum objective criteria
to be eligible for promotion to the rank of Captain. She was
eligible to take, and passed, the written test and assessment
center in 2001 and 2003. As a result, the Department rated her
“more than qualified” and put her on the certified lists from
which the Fire Chief could select applicants for promotion.
Wesley contends that these factors deem her qualified for
the purpose of establishing her prima facie case. The
Department, on the other hand, considers these factors merely a
preliminary step, and argues that, to be truly qualified, an
applicant had to demonstrate several other qualities. In support
of its argument, the Department points out that the position
description for Captain set forth several qualifications beyond
the testing hurdles Wesley successfully passed. These included
“considerable experience in the fire department,” “considerable
knowledge” of Department practices, “[i]nterpersonal skills,”
and “[p]roblem solving skill[s].”
9
Some of these factors are at least partially duplicative of
the threshold requirements for taking the Captain’s exam.
“Considerable experience,” for example, is reflected in the
minimum years of service required to sit for the test, while
“considerable knowledge” and “problem solving skills” are
indicated by an applicant’s success on the written and
assessment center portions of the promotional process.
“Interpersonal skills” is a vague and subjective criterion,
perhaps best measured by an applicant’s standing in the eyes of
her peers, supervisors and subordinates; the record includes
multiple instances of Wesley’s superiors praising her
interactions with both coworkers and the public.
In addition to her success in the testing stages, Wesley
gained generally positive performance reviews. 5 She also served
as an acting captain on numerous occasions, apparently without
incident, thus demonstrating she could in fact perform the
duties required of the position.
5
The record indicates that Wesley had a series of minor
vehicle accidents, including one in 2002 resulting in a
disciplinary letter and the loss of eight hours of vacation
time. Yet the Department can hardly argue that such reprimands
disqualify a firefighter from promotion: in 2002, the Department
promoted an employee to Captain who had been suspended for
forty-five days, barred from ever applying for promotion to
other firefighter positions, and told that his actions at an
accident scene endangered a patient’s life.
10
Wesley’s applications failed only at the roundtable stage.
Although the Fire Chief and other Department personnel claim
that decisions at that point were made on various objective and
subjective factors related to Wesley’s job performance and
qualifications, it appears the Fire Chief’s decision at this
point was entirely discretionary. Under the Department’s theory
of qualification, only those persons actually selected by the
Fire Chief would appear to be qualified applicants. Such a rule
would forestall nearly any plaintiff from meeting her initial
burden under the McDonnell Douglas burden-shifting regime.
The Department’s evidence on this issue consists largely of
the deposition testimony of the Fire Chief and other management
personnel regarding Wesley’s experience and job performance. The
Chief and his subordinates repeatedly allege that concerns were
raised, primarily at the roundtable stage, about Wesley’s
performance at the training academy and the relatively minimal
time she had spent in operations positions. Unfortunately,
because the Department failed to preserve the records of the
roundtable discussions, little documentation of these alleged
conversations survives.
Nevertheless, Wesley has proven her prima facie case even
if we consider the affidavits and deposition testimony related
to the roundtable discussions. At this stage, she need not
establish that she was the most qualified person for the
11
position, only that she met the job requirements and thus was
qualified for the position of Captain. Her written reviews from
her time as a trainer and her other documented evaluations were
positive. The affidavits and deposition testimony of the Fire
Chief and other personnel related to the roundtable discussions
are only evidence that management had concerns about her skills
and performance. These issues are relevant at later stages of
the analysis, but not to whether she actually possessed the
requisite qualifications.
Therefore, we hold that Wesley’s positive performance
reviews, her documented achievements as a firefighter, and her
success on the objective phases of the promotional process are
sufficient to establish that she was qualified for the position
of Captain. 6
B.
After determining that Wesley was unqualified for the
position of Captain, the district court alternatively analyzed
the two remaining prongs of the McDonnell Douglas burden-
shifting framework and concluded that Wesley could not show that
the Department’s non-discriminatory reasons were mere pretext.
6
We do not understand the dissent to disagree with the
conclusion that Wesley met this initial burden of showing that
she was objectively qualified.
12
[T]he plaintiff—once the employer produces sufficient
evidence to support a nondiscriminatory explanation
for its decision—must be afforded the “opportunity to
prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
discrimination.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000)(quoting
Burdine, 450 U.S. at 253).
The Department offers two main justifications for the Fire
Chief’s failure to promote Wesley: she lacked the experience and
capabilities of many other candidates who were promoted; and the
Fire Chief’s senior officers informed him of problems with
Wesley’s performance. Although these justifications are
sufficiently plausible on their face to meet the Department’s
burden under McDonnell Douglas, we are persuaded that Wesley has
raised genuine questions of material fact about whether they are
mere pretext for discrimination.
1.
While the Department did establish that Wesley had
relatively few total years in operations when compared to some
other applicants, a current Department senior officer testified
that a firefighter’s actual field experience could vary
depending on what job within operations she held, and that
Wesley had at least as much real firefighting experience as did
white males promoted by the Fire Chief. Wesley also has
established that the training academy position she held, which
13
the Department now discounts as non-operations experience, was a
traditional stepping-stone to Captain. 7
As evidence that its concern about Wesley’s limited field
experience was addressed before the litigation, the Department
points to communications attempting to convince Wesley to leave
the teaching position for operations. Yet it was entirely
reasonable for Wesley to remain in the training academy for two
reasons. First, as noted above, she had seen many employees use
the training academy post as a finishing school for promotion to
Captain. Second, the request to remove Wesley from the training
academy came only a few weeks before she was to begin working
with a new class of recruits. Her supervisor at the academy
strongly opposed her removal. Furthermore, after she completed
the course, Wesley did in fact return to an operations position.
The Fire Chief makes much of certain qualifications and
certifications held by various applicants for the Captain
position. Specifically, he asserts that he highly valued
Advanced Life Support (“ALS”) certification when making
promotion decisions. He also cites Hazardous Materials
(“hazmat”) and technical rescue certifications. Wesley had none
7
During the relevant time period, at least seven male
firefighters were promoted to Captain after serving at the
training academy. All applicants with instructor experience were
promoted in 2003 except Wesley, another female applicant and a
male who had been cited for driving under the influence.
14
of these certifications. Yet participants of the roundtables
dispute whether the Fire Chief ever discussed these
certifications during these sessions, and whether they
constituted a major factor in promotional decisions. J.A. at
228. Notably, the department failed to promote not only Wesley,
but also the other two women on the 2003 qualified list, even
though they both held the ALS certification. Especially where
the Department has destroyed any records of these conversations,
it was improper for the district court on summary judgment to
credit the affidavits and testimony of some participants (namely
the Fire Chief) over other contradictory accounts.
Furthermore, if the Fire Chief’s version of his decision is
to be believed, he valued every certification or qualification
that Wesley did not have, and discounted any factor on which she
might have been viewed favorably. The Department highlights that
one applicant had experience running his own business, and that
another had worked on an inter-jurisdictional task force. Yet
the Fire Chief allegedly gave no or little weight to leadership
training, public relations roles, or acting captain experience,
all of which Wesley possessed. Importantly, not every Captain
within the Department is assigned to drive a fire truck or an
ambulance. The job description in the position announcement
lists “supervisory, administrative and technical work in the
Fire Department.” Indeed, the recruiting position that Wesley
15
held, and which the Department now criticizes as non-operational
experience, was elevated to a Captain-level post after Wesley
moved on to other assignments.
The purported importance of some marginally relevant
qualifications and disregard of other, seemingly pertinent
aspects of Wesley’s career raise a genuine question of material
fact as to whether the overall set of criteria now set forth is
an accurate picture of the decisional framework in place at the
time. See DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th
Cir. 1998)(“[I]t is not our province to decide whether the
reason was wise, fair, or even correct, ultimately, so long as
it truly was the reason.”)(emphasis added).
2.
The Department’s assertion that the Fire Chief was
concerned with Wesley’s “uneven” performance is similarly
suspect. The Department initially asserted that negative items
in Wesley’s personnel file, arising in 1997 and 1999, were
relevant to the Fire Chief’s decision not to promote her to
Captain. 8 Yet the Fire Chief himself testified that, while he
knew of these issues, they did not influence his decision. This
8
Apparently Wesley had some difficulty refreshing her
skills after time on maternity leave in 1997, though subsequent
reviews indicate no such problems. In 1999, she was involved in
a minor vehicle accident.
16
inconsistency suggests that, in responding to Wesley’s claims,
the Department may not merely have been explaining the Fire
Chief’s decision-making process, but instead searching Wesley’s
file for any damaging piece of information that could
conceivably have justified the Fire Chief’s decisions. See
E.E.O.C. v. Sears Roebuck and Co., 243 F.3d 846, 852-53
(2001)(inconsistent reasons and post-hoc rationalizations are
“probative of pretext”).
The Department’s shifting explanations continued to the
very close of the case before the district court. In its reply
brief on summary judgment, the Department, for the first time,
produced an affidavit from a training academy recruit alleging
first-hand knowledge that Wesley slept at the academy when she
was supposed to be supervising students – an accusation Wesley
strongly denies. Yet this affidavit does not purport to show
that the recruit ever relayed this information either to the
Fire Chief or to anyone who attended the roundtables; thus, it
cannot be known whether this information was relevant to the
Fire Chief’s state of mind at the time of his decisions. We also
note again that the fire chief promoted one applicant to Captain
despite a history that included an incident deemed a threat to
patient life and which resulted in a forty-five day suspension.
Clearly, performance and discipline issues were not always
sufficient to deny promotion. We therefore conclude that a
17
reasonable jury could find the Department’s proffer of these
performance issues merely pretextual. 9
IV.
For the foregoing reasons, we hold that Wesley has
established a prima facie case of discrimination, and has shown
that genuine issues of material fact exist as to whether the
Department’s proffered non-discriminatory reasons for its
decision not to promote her are mere pretext for discrimination.
9
The dissent urges that we not substitute this Court’s
judgment for that of the employer. However, we must similarly
not invade the province of the jury and weigh the credibility of
witnesses and evidence on contested issues of fact. We make no
ultimate judgment on whether the reasons offered by the
Department are pretextual. Instead, reviewing the limited and
contradictory evidence in the record in the light most favorable
to Wesley, we only hold that a reasonable jury could reach such
a conclusion. Unlike this Court or the district court on summary
judgment, a jury will be able to hear and see the testimony of
witnesses, presumably including Wesley and Department officers.
Additionally, the jury may lay the dueling evidence side by side
and find some of it more credible and weighty. We are bound not
to do so here. Although the dissent considers Wesley’s case
“regrettably weak,” she has proffered substantial evidence
(including the Department’s own records, and affidavits from
several senior officers) contradicting the recollections of the
Fire Chief and others. Together, they are more than sufficient
to support a jury finding of pretext.
18
Accordingly, we reverse the order of the district court
granting summary judgment and remand the case for trial. 10
REVERSED AND REMANDED
10
Because we reverse the district court’s order of summary
judgment and remand for trial, we need not address that court’s
decision to deny Wesley’s motion to strike certain affidavits
that the Department attached to its reply brief on summary
judgment.
19
WILKINSON, Circuit Judge, dissenting:
I thank my colleagues for their thoughtful opinion, but I
must respectfully dissent. Because the record in this case
provides no reasonable basis to infer that the Department’s
reasons for not promoting Wesley were false, much less that the
actual reason was race or sex, her claims must fail. In
remanding for trial, however, the majority unfortunately assumes
the role of “super-personnel department weighing the prudence of
employment decisions.” DeJarnette v. Corning, Inc., 133 F.3d
293, 299 (4th Cir. 1998) (internal quotation omitted).
The Department produced three legitimate non-discriminatory
reasons for not promoting Wesley: relative to the other
candidates, she had less operations experience, less technical
skill, and a less distinguished record of prior performance. To
prevail, Wesley must be able to show not only that these reasons
are false but also “that discrimination was the real reason.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
First of all, there is no dispute that Wesley had fewer
total years in operations than the candidates who were promoted
and that this factor was discussed at the roundtables.
Operations experience refers to time spent serving on the crews
of fire trucks or ambulances. The majority attempts to minimize
this uncontroverted fact by noting that Wesley was said by one
senior officer to have as much experience on fire trucks (as
20
opposed to ambulances) as some of the candidates who were
promoted. But this testimony is neither here nor there. He did
not dispute that the Department did, in fact, base its decision
on Wesley’s relative lack of total operations experience.
Rather, he simply disputed whether, in his judgment, the
Department should have based its decision on that fact. But
“[w]e cannot require that different supervisors within the same
organization must reach the same conclusion on an employee's
qualifications and abilities.” Anderson v. Westinghouse Savannah
River Co., 406 F.3d 248, 272 (4th Cir. 2005).
There is also no dispute that Wesley knew that her
superiors wanted her to gain more experience in operations, that
she chose to remain in non-operations positions despite their
concerns, and that her choice was discussed at the roundtables.
The majority attempts to discount these facts by stating that it
was “entirely reasonable” for Wesley to remain in her non-
operations job at the training academy. Maj. Op. at 14. But
whether or not the decision seemed reasonable from Wesley’s
perspective is irrelevant. “[W]e have repeatedly explained that
it is the perception of the decision maker which is relevant.”
DeJarnette, 133 F.3d at 299 (internal quotation and alteration
omitted). And from the Chief’s perspective, Wesley declined the
opportunity to obtain the very experience that she knew was
necessary to put herself among the top candidates for Captain.
21
The majority seeks to downplay the importance of
operational experience by pointing out that “not every”
captainship required such experience. Maj. Op. at 15. But it
is not racial or sexual animus for a fire chief to want captains
who are fully capable of assuming operational duties on fire
trucks or ambulances, which, after all, is what the Department
is about. The majority further attempts to discount Wesley’s
relative lack of operations experience by noting that she did
eventually return to operations. But Wesley returned to
operations for only sixteen months before choosing to transfer
back to a non-operations position. During her return, she was
involved in three vehicle accidents between April and June of
2002 and consequently received an unsatisfactory rating on a key
element of her job performance. Moreover, the short duration of
her return was discussed at the roundtables.
Turning to the Department’s second reason, it is undisputed
that the candidates promoted had at least one of the following
certifications: advanced life support (ALS), hazardous
materials, or technical rescue. Wesley, however, had none of
these. The majority states that “participants of the
roundtables dispute whether the Fire Chief ever discussed these
certifications during these sessions.” Maj. Op. at 15 (citing
J.A. 228). To be sure, two roundtable participants did not
recall whether “special consideration” was given to candidates
22
who were paramedics, i.e. those who held ALS certification.
J.A. 228, 312-13. But those two participants did not deny that
ALS or other certifications were discussed and thus given some
consideration. Indeed, the whole point of the roundtables was
to discuss such matters. At most, there is a question about how
much weight was given to a particular certification, but there
is no question that Wesley lacked that certification.
The majority’s real concern seems to be that the Chief did
not give enough weight to Wesley’s other qualifications. In its
view, the Chief valued other candidates’ “marginally relevant”
qualifications but disregarded Wesley’s “seemingly pertinent”
ones. Maj. Op. at 16. I do not understand how the majority
distinguishes between the “marginal[]” and the “pertinent.”
Among the “marginal[],” it places one candidate’s leadership
role in an inter-jurisdictional task force, which according to
the Chief, “required [the candidate] to manage complex personnel
and technical situations.” J.A. 30. But among the “pertinent,”
it places Wesley’s experience in public relations. More
generally, as the majority rightly acknowledges, “it is not our
province to decide whether the reason was wise, fair, or even
correct, ultimately, so long as it truly was the reason.”
DeJarnette, 133 F.3d at 299 (internal quotation omitted). The
mere fact that the majority would weigh certain undisputedly
relevant qualifications differently is hardly a reason to infer
23
that the Department is prevaricating -- much less discriminating
on the basis race or sex.
Turning to the Department’s third reason, it is undisputed
that Wesley had a relatively spotty performance record, that the
Chief was aware of her record, and that her record was discussed
at the roundtables. The majority, however, faults the
Department for offering “shifting explanations.” Maj. Op. at 17.
To establish this, it compares the Department’s interrogatory
responses to the Chief’s deposition. In its interrogatory
responses, the Department listed several instances of
unsatisfactory performance from Wesley’s personnel records.
These included a 1997 incident in which Wesley performed poorly
as a pump operator and then showed little initiative to improve
and a 1999 incident in which she was involved in a vehicle
accident while responding to a call. To be sure, the Chief
later stated that, while he was aware of these two particular
incidents, he probably deemed them too stale for his
consideration. But his statement is not a reason to infer that
the Department has been offering shifting explanations. The
Department never claimed that Wesley was not promoted because of
one or two particular incidents. Rather, it consistently
maintained that she was not promoted because of her general
reputation for poor performance -- most recently reinforced by
her involvement in three vehicle accidents in 2002. Indeed, the
24
interrogatory response in question does not purport to say that
the 1997 and 1999 incidents were major factors in the Chief’s
decision; instead, it points to them only as part of a
“persistent pattern of concerns” about Wesley’s performance.
J.A. 99. If there is any inconsistency at all between the
interrogatory responses and the Chief’s statement, it is
negligible. It goes only to which of the various instances of
poor performance in Wesley’s past stood out the most to the
Chief -- not to whether he was aware of the instances at the
time of his decision or whether he ever wavered in his overall
assessment that her performance was poor.
In its continuing effort to portray the Department’s
explanations as “shifting,” the majority also points out that
the Department submitted an affidavit late in the litigation
from a training recruit who stated that Wesley fell asleep
during classes she was supposed to be teaching and lacked
knowledge of basic concepts. It is hard to see how this
affidavit is evidence of an inconsistent explanation, given that
the Fire Chief and several battalion chiefs had previously
stated in their affidavits that such concerns were raised at the
roundtables. To be sure, two panel participants did not recall
these concerns being discussed. But to label the Department’s
position as shifting because of the recruit’s affidavit, as the
majority does, is simply incorrect.
25
The majority attempts to bolster its argument that the
Department did not actually base its decision on Wesley’s spotty
performance record by pointing out that the Fire Chief promoted
someone to Captain in 2002 despite an even spottier record. It
is telling that the majority must reach outside of the
limitations period for Wesley’s suit to find someone who was
promoted with a record that was arguably worse than hers. * It
does not point to a single blemish in the personnel files of the
six individuals promoted during the period of her suit, despite
the fact that those files are in the record. See J.A. 400-768.
Nor does it contend that Wesley matched up against those who
actually received the promotion. What is more, the majority
fails to note that the position of Fire Chief was held by a
different individual in 2002 than in the period covered by
Wesley’s suit. That the new chief may have taken past
performance more seriously than his predecessor is no reason to
infer that he discriminated against Wesley.
The majority suggests that it is merely respecting the
“province of the jury” by declining “to weigh the credibility of
witnesses and evidence on contested issues of fact.” Maj. Op. at
*
Under the statute of limitations, Wesley’s suit covers
only the period from October 2004 to August 2005, during which
the Department promoted six individuals. Wesley v. Arlington
County, 2008 WL 4774480, at *4 (E.D. Va. Oct. 24, 2008).
26
18, n.9. But this argument misses the point. The only thing in
dispute here is whether the Chief’s decision was wise or not --
a point which can be debated with respect to every single
decision to promote but which is not a material issue under
Title VII. The majority does little more than second-guess the
Fire Chief’s decision, but it is not our role nor within our
competence to do so. This is especially true where, as here, the
position involved is critical to public safety and demands a
very specialized skill set. The Captain of a fire truck must
not only possess technical capabilities and extensive experience
but also command the respect of his or her team. Otherwise, the
morale and efficiency of that team may crumble, resulting in
serious injury to both persons and property.
I recognize that historically the officer ranks of fire and
police departments have not been as open to minority and female
officers as they should have been. And yet, as the district
court noted and the majority does not contest, the Department
has in recent years promoted well-qualified African-Americans
and women to various positions at rates comparable to the rates
for white males. See Wesley v. Arlington County, 2008 WL
4774480, at *3 (E.D. Va. Oct. 24, 2008). This case is, however,
regrettably weak. The promotion in question should be earned at
the stationhouse -- not the courthouse. With full respect for
27
my able colleagues, I would affirm the judgment of the district
court.
28
