Treatment Of Other Firefighters Bolsters African-American Firefighter’s Discrimination Claim

Tiffanye Wesley is a firefighter with Arlington County, Virginia. 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 Fire Chief did not promote her. Wesley filed a lawsuit in federal court, alleging that she was the victim of race and gender discrimination.

The federal Fourth Circuit Court of Appeals allowed Wesley’s lawsuit to proceed. The County’s main arguments were that Wesley lacked the experience to become a captain, and that the Fire Chief had been informed by senior officers of problems with Wesley’s performance.

As to the County’s “experience” argument, the Court found that while the County did establish that Wesley had relatively few total years of experience in operations when compared to some of the other applicants, a 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. The Court commented that “Wesley also has established that the training academy position she held, which the Department now discounts as non-operations experience, was a traditional stepping-stone to captain.”

As to the County’s argument that Wesley’s performance was “uneven,” the Court observed that the Department’s position was “suspect,” citing the following evidence: “The Department initially asserted that negative items in Wesley’s personnel file were relevant to the Fire Chief’s decision not to promote her to captain. Yet the Fire Chief himself testified that, while he knew of these issues, they did not influence his decision. This 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 was searching Wesley’s file for any damaging piece of information that could conceivably have justified the Fire Chief’s decisions. The Department’s shifting explanations continued to the very close of the case before the trial court. 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 45-day suspension. Clearly performance and discipline issues were not always sufficient to deny promotion. We therefore conclude that a reasonable jury could find the Department’s proffer of these performance issues merely pretextual.”

The Court returned the case to the trial court with instructions that Wesley should be allowed to present her case to a jury.

Wesley v. Arlington County, 2009 WL 4572781 (4th Cir. 2009).

This article appears in the February 2010 issue