Wesley v. Arlington County

UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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