United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE
consolidated employment discrimination action filed by
Firefighter Jupiter Dennell Wilson, the City of Chesapeake
moved for summary judgment (ECF No. 52). The City argues the
evidence is insufficient to permit a reasonable juror to
conclude Wilson was subject to an adverse employment action
as a result of his age or race, or in retaliation for prior
complaints of discrimination. See Def.'s Mem. Supp. Mot
Summ. J. ("Def.'s Mem.") (ECF No. 53). The
City's 50-page motion is supported by declarations from
fifteen witnesses, Wilson's own deposition, and numerous
exhibits. Wilson filed a brief opposing summary judgment,
attaching his own sworn declaration in support. (ECF No. 58).
reviewing the exhibits and evidence the parties have
submitted in contest of the summary judgment motion, this
court concludes that Wilson has not produced evidence of
adverse employment actions or of a similarly situated
comparator necessary to establish a prima facie case, or to
rebut the City's proffered non-discriminatory reasons for
the choices it has made regarding Wilson's training and
promotion. Accordingly, as explained in greater detail below,
the court will GRANT the City's Motion for Summary
Judgment (ECF No. 52).
FACTUAL AND PROCEDURAL HISTORY
Wilson is a black man over the age of 40. He has been and
remains employed as a firefighter with the Chesapeake Fire
Department ("CFD"), where he has worked since 1996.
The events relevant to his claims in this court all occurred
during and after 2011. The court summarizes those events
below, relying on the parties' declarations and an agreed
stipulation of facts-but viewing any dispute of fact in the
light most favorable to Wilson.
filed a number of claims against the City of Chesapeake with
the Equal Employment Opportunity Commission
("EEOC"), all related to his access to training and
eligibility for promotion. Each of these was dismissed. He
subsequently filed four separate complaints against the City.
This court dismissed the first of these outright. Wilson
v. City of Chesapeake. 2015 WL 11116781, at *l-2 (E.D.
Va. 2015), aff'd 615 Fed.Appx. 810 (4th Cir. 2015). This
court also previously dismissed any claims for hostile work
environment and discrimination based on disparate
impact. See Order (ECF No. 20); Order, Wilson
v. City of Chesapeake. No. 2:16cv629 (E.D. Va. May 26,
2017); Order, Wilson v. City of Chesapeake. No.
2:16cv711 (E.D. Va. May 26, 2017). But Wilson's race and
age discrimination claims under Title VII or the Age
Discrimination in Employment Act in his other three
Complaints survived the City's motions to
dismiss. Because the claims remaining in all three
Complaints allege overlapping facts, they were
consolidated-though not merged together-under the first filed
and lead case, No. 2:16cv301. Mem. Order (ECF No. 39).
The Chesapeake Fire Department's Fire Promotional
2011, the Chesapeake Fire Department established a new system
to select firefighters for promotion to leadership positions
within the department. In the Department's Fire Promotional
Process ("FPP"), all personnel interested in being
considered for promotion are evaluated and ranked against
each other at the end of June in every odd-numbered year.
When a position opens into which a firefighter could be
promoted, the Fire Department offers the position to
employees in order of most-qualified to least-qualified. The
ranking of the promotion list is achieved using a written
examination, an in-person evaluation of a firefighter's
responses to various scenarios intended to assess judgment
and knowledge, and a review of the firefighter's
"professional history synopsis, " essentially an
assessment of his resume as a fire professional. In the
summer of 2015, for instance, 35 firefighters were qualified
for promotion to lieutenant and were ranked against each
other on the promotion list. Over the next two years, 15
positions opened, and the vacancies were filled by offering
them to the highest-ranked firefighters on the promotion
list. Stipulations at 3 (ECF No. 63).
the significant changes in the new FPP was that, starting
with the 2013 promotion cycle, to be considered for
advancement to lieutenant, firefighters must have been
"released"- certified-to "act out of
title" before they could be placed on the promotion
list. A firefighter acts out of title by assuming the duties
of an absent officer. The onus is on the aspiring officer to
train for release to act out of title: there is no
requirement that the Department train its firefighters for
release to act above their paygrade. Wilson Dep. at 180 (ECF
the FPP required firefighters to be qualified to act out of
title before being placed on the promotion list, there was no
quota or minimum amount of acting out of title time required
of a firefighter before she could be promoted. The FPP was
widely advertised in the Department during its roll-out. Fire
Department leadership distributed videos to firehouses
explaining the new program and made information on the
program available to firefighters through the
Department's computer network. See Stipulations at 2-3
(ECF No. 63). Wilson knew of the changes to the program and
knew that he would have to be released to act out of title to
be included in the FPP for 2013. Wilson Dep. at 196 (ECF No.
53-8) (Counsel for the City: "[Y]ou had two years of
knowing this qualification was due; is that correct?"
Wilson's Access to Training Generally.
response to generalized allegations from Wilson that the City
denied him access to training that would have made him more
competitive for promotion, the City has summarized his
training records, focusing in particular on the training he
received in the period since 2011.
firefighter employed with CFD has a training
"matrix" identifying specific training courses she
needs to complete in order to qualify and remain qualified
for her specific job. Firefighters are permitted to submit
requests to participate in training outside of their matrix
to supplement their mandated skills and proficiencies.
Training requests are routed through the firefighter's
supervising officer at her station, then on to her battalion
chief, and finally to the Department's Training Division.
The Training Division considers each request, including any
comments or recommendations from the firefighter's
leadership, and reaches one of three conclusions: she might
be permitted to attend the training with the sponsorship of
the Department; she might be allowed to attend the training
but be required to take leave and pay the costs of the
training on her own; or the firefighter might not be allowed
to attend the training at all. Stipulations at 14 (ECF No.
requested to attend and was approved to attend many
out-of-matrix courses in the five years since 2011. For some
of these, including the Virginia Fire Officer's Academy,
the Department funded Wilson's attendance. The city
permitted Wilson to attend other courses but did not sponsor
them. Still other training requests by Wilson the Department
denied entirely. See Id. at 14-18.
has not comprehensively described how or why he feels the
Department's handling of his training regimen was
inadequate, let alone inadequate due to race or age
discrimination. During his deposition, Wilson did say he felt
it was unfair that, in 2011, Firefighter Danny
was permitted to attend a Juvenile Firesetter class after
Wilson's request to attend the same class was denied.
Wilson did not explain why he felt Ward was
similarly-situated to him, however, or why he was
disadvantaged by having to wait to take the course the next
year. There is no dispute that Wilson completed the Juvenile
Firesetter classes in September and November of 2012.
Training Certificates (ECF No. 53-23 at pp. 42-43).
also appears to argue in his deposition testimony that the
Department did more to facilitate training for other
firefighters than it did for him. Namely, Wilson said the
Department allowed other firefighters to use official
vehicles to attend training so they did not have to travel
using their personal vehicles. Wilson Dep. at 216-17 (ECF No.
53-8). The City contends this is because firefighters who
attend training while on duty are permitted to use official
vehicles. Wilson himself was permitted to use an official
vehicle to attend a training event in Richmond, Virginia, on
September 11, 2015. Stipulations at 18 (ECF No. 63). Wilson
has not identified any firefighter who he claims attended
training off-duty using an official vehicle.
Lawrence Matthews, CFD's Training Director, reviewed
Wilson's training record. Capt. Matthews said
"[Wilson] has received comparable, if not more, training
opportunities as similarly-situated younger, white
firefighters in the Chesapeake Fire
Department." Matthews Aff. at ¶ 11 (ECF No.53-22).
Wilson's Training to Be Released to Act out of
primary claims of discrimination relate to the training he
received in order to be eligible to act out of title and the
number of opportunities he was afforded to act out of title
once released. Wilson requested to be considered for
promotion in the 2005, 2007, 2011, 2013, and 2017 promotion
cycles. He qualified to be included on the promotion list in
each cycle, although, because of the new requirement that
applicants for promotion be certified to act out of title,
Wilson almost missed being included in 2013. With the
deadline for certification looming on June 30, 2013, Wilson
still had not been released to act out of title.
point between May 2011 and August 2012, Wilson first
contacted his supervisor, Lt. Duane Daggers, about undergoing
the training he needed to qualify to act out of title.
Because Wilson was only assigned to Lt. Daggers temporarily
for training to recertify as an emergency medical technician,
Lt. Daggers refused this request. Wilson Dep. at 185 (ECF No.
53-8). Wilson was subsequently reassigned in August 2012 to a
permanent position under Lt. Mark Disharoon at Station 7. In
September that year, soon after his re-assignment, Wilson
contacted Battalion Chief William Ackiss, the officer with
overall responsibility for Station 7 and several others, to
ask what the criteria were for being released to act out of
title. Ackiss informed him of the need to coordinate training
through his direct supervisor, Lt. Disharoon.
to Wilson, Disharoon had previously discouraged Wilson from
applying for promotion, saying, "[A]nybody that wants to
be a lieutenant is stupid or retarded." Wilson Aff. at
5, 8 (ECF No. 58-2). Wilson was out of work on medical leave
in October and on vacation in November. Because Lt. Disharoon
was preparing to retire from the Department in December,
Wilson chose not to pursue the training required for release
to act out of title until a new lieutenant was assigned to
his shift at Station 7. Wilson Dep. at 202-206 (ECF No.
53-7). Shortly thereafter, Chief Ackiss sent Wilson an email
explaining the criteria to be released to act out of title.
Ackiss Aff. at 2-3 (ECF No. 53-6).
Jerry Bonn was assigned to manage Wilson's shift at
Station 7 in January 2013. By the City's own admission,
he was a tough officer. Bohn and Wilson had a tense
relationship, making the other personnel on their shift
uncomfortable with "constant loud
arguments." After Bohn learned Wilson hoped to be
included on the promotion list during the 2013 cycle, Bohn
discouraged Wilson from pursuing the promotion. Wilson still
sought to be considered for promotion, though he knew he
remained ineligible to be included on the list because he had
not been released to act out of title. Therefore, in May
2013,  he met with Bohn and Ackiss to discuss
training necessary to be released in time for the June 30,
2013, deadline to be included in that year's FPP cycle.
Although the training needed for release to act out of title
is usually undertaken over the course of six months or a
year, Chief Ackiss agreed to allow Wilson to complete the
training on a much-compressed timeline. He intended for
Wilson to receive his certification before the June 30, 2013,
deadline for inclusion on the promotion list for the next
two-year cycle. Bohn disagreed with this course of action,
but at Ackiss' direction, Bohn began training Wilson
until Bohn was transferred away from Station 7 in early June.
Ackiss directed several other officers to continue
Wilson's training. Ackiss Aff. at 6(ECF No. 53-6). Chief
Ackiss monitored Wilson's training until, on June 28,
2013, Chief Ackiss released Wilson to act out of title.
Wilson does not dispute that he received the training
necessary to act out of title and was therefore eligible for
the 2013 FPP, but he contends he was discriminated against by
having to complete the training on an accelerated basis.
Wilson Aff. at 18 (ECF No. 58-2). This allegation was the
basis for his first charge to the EEOC in July 2013. Charge
of Discrimination (July 12, 2013) (ECF No. 53-14).
Wilson's Difficulties Getting Time as Acting
claims he was denied opportunities to serve as the acting
officer in charge of a shift. He appears to argue this
constitutes a denial of training he needed to compete for
promotion. Wilson makes both "macro" and
"micro" claims that he was denied such training
opportunities. Out of all employees in the Department, he has
identified several younger, white colleagues whom he alleges
have received more acting out of title opportunities over the
course of the four years since he was released to act out of
title. He has also identified three discrete incidents in
which he says he was denied an opportunity to act out of
title. Although it is not clear why, Wilson has implied that
these denials related to his race or age.
macro level, Wilson has identified many firefighters in the
department who, between June 30, 2013 and November 1, 2017,
acted out of title more times than he did. According to
records Wilson generated using CFD's human resources
records,  he has acted out of title on 45 occasions
over that time. Spreadsheet, Ex. 8 to Wilson Dep. (ECF No.
53-9, 53-10). In that same period, other firefighters have
acted out of title over one hundred times. Still others have
acted out of title far fewer times than Wilson. The exhibit
itself does not establish that any of the firefighters are
younger than Wilson or Caucasian. However, in Wilson's
declaration, he identifies three firefighters who are younger
and Caucasian and did, according to his spreadsheet, spend
more time acting out of title than he did. Wilson Aff. at 23
(ECF No. 58-2). According to Wilson's spreadsheet, Brian
Atkins acted out of title 132 times, Jeremy Brittenham 100
times, and Bryan Soriano 104 times since June 30, 2013. Id;
Spreadsheet, Ex. 8 to Wilson Dep. (ECF No. 53-9, 53-10).
Wilson does not allege any of these firefighters was assigned
to Station 7 where Wilson worked or reported to the same
supervisor as Wilson. Notably, the only other firefighters
released to act out of title and assigned to Wilson's
shift at Station 7 were Firefighter William Copeland, who
acted out of title seven times, and Firefighter Nicholas
Novellino, who acted out of title 60 times according to
Wilson's spreadsheet. Id.
City's declarations contend that opportunities to act out
of title only arise when an officer is unavailable to manage
a shift. The number of opportunities therefore varies widely
from station-to-station and shift-to-shift based on the
officers' scheduled leave, training, and even sickness.
Wilson Dep. at 123-124 (ECF No. 53-7). Although opportunities
to act out for short absences generally rotated between
released firefighters, when an officer was going to be absent
for more than a few hours or days, her position was offered
to the firefighters on the promotion list in descending order
based on their ranking. Hoag Aff. at 5 (ECF No. 53-11). No
long-term acting out of title opportunity has been offered to
Wilson because he never ranked highly enough on the promotion
list to be offered one. Id.
micro level, Wilson has also identified three occasions in
which felt he should have been allowed to act out of title
but was kept from doing so allegedly because of his race or
his age. In the first, on September 25, 2013, Station 7 was
so short-staffed that they were unable to man all of their
vehicles. The lieutenant who succeeded Bonn, Lt. Francis
Cherry, was not on duty, so Wilson assumed he would be
assigned as the acting officer. Notwithstanding Wilson's
belief, Chief Ackiss assigned a firefighter from another
station, Fred Harris, to allow them to sufficiently staff the
shift. Fred Harris had been released previously to act out of
title at his home station, and Chief Ackiss knew Station
7's fire engine had unique handling on the backroads that
make up Station 7's area of responsibility. Because
Harris had no experience driving the unusual fire engine on
the unusually difficult roads around the Station, Ackiss
assigned Harris to be acting officer, allowing Wilson to
drive the fire engine Harris had no experience with. Ackiss
Aff. at 7 (ECF No. 53-6). Like Wilson, Harris is a black man
over the age of 40. Harris Aff. (ECF No. 53-16). This
incident led to Wilson lodging his second charge with the
EEOC. Charge of Discrimination (Jan. 13, 2014) (ECF No.
second incident, on January 29, 2014, Wilson had been
scheduled to attend a training session away from Station 7.
Lt. Cherry and all other firefighters released to act out of
title were on leave that day, so Chief Ackiss assigned Thomas
Ricardi, a firefighter from a different station who was
released to act out of title, to supervise the shift at
Station 7. Ricardi is a white man over the age of 40.
Stipulations at 10-11 (ECF No. 63). When a snowstorm came up
that forced the cancellation of Wilson's class, he
reported to Station 7 for duty instead of going to the
cancelled training. Ricardi served as acting officer over
Wilson and the rest of the firefighters on shift for
approximately two to three hours before Chief Ackiss realized
he had more firefighters qualified to act out of title at the
station than he needed, put Wilson in charge of the shift,
and moved Ricardi to another station. Id. at 10;
Ackiss Aff. at 8-10 (ECF No. 53-6). This incident led Wilson
to lodge his third charge with the EEOC. Charge of
Discrimination (July 14, 2014) (ECF No. 53-20).
third incident, on October 24, 2014, Lt. Cherry called out
sick. By the informal rotation of the firefighters released
to act out of title at the station, it was Wilson's turn
to serve as acting officer. Firefighter William Copeland, one
of the other personnel on Wilson's shift released to act
out of title, mistakenly assumed the role of acting officer
because he did not know about the rotation. Copeland is a
white male over the age of 40. Copeland Aff. (ECF No. 53-13).
There is no evidence from the parties that Wilson objected to
Copeland's assuming the acting officer role. Id.
Wilson Aff. at 22-23 (ECF No. 58-2). Part of the way through
the day, Copeland realized his mistake and offered to let
Wilson take his next acting ...