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Wilson v. City of Chesapeake

United States District Court, E.D. Virginia, Norfolk Division

February 12, 2018

Jupiter Dcnncll Wilson, Plaintiff,
City of Chesapeake, Defendant.



         In this 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).

         After 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).


         Jupiter 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.

         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.[1] 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.[2] 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).

         A. The Chesapeake Fire Department's Fire Promotional Process.

         In 2011, the Chesapeake Fire Department established a new system to select firefighters for promotion to leadership positions within the department.[3] 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).

         One of 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 No 53-8).

         Although 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: "Yes.").

         B. Wilson's Access to Training Generally.

         In 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.

         Every 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. 63).

         Wilson 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.

         Wilson 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 Ward[4] 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).

         Wilson 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.

         Capt. 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."[5] Matthews Aff. at ¶ 11 (ECF No.53-22).

         C. Wilson's Training to Be Released to Act out of Title.

         Wilson's 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.

         At some 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.

         According 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).

         Lt. 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."[6] 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, [7] 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).

         C. Wilson's Difficulties Getting Time as Acting Officer.

         Wilson's 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.

         On the 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, [8] 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.

         The 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.

         On the 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. 53-17).

         In the 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).

         In the 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 ...

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