Hux v. City of Newport News ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JONNIE SUE HUX, 
Plaintiff-Appellant,
v.  No. 05-1230
CITY OF NEWPORT NEWS, VIRGINIA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(CA-03-175)
Argued: May 25, 2006
Decided: June 23, 2006
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Niemeyer and Judge King joined.
COUNSEL
Carolyn P. Carpenter, Richmond, Virginia, for Appellant. Allen Link
Jackson, Chief Deputy City Attorney, CITY ATTORNEY’S OFFICE
FOR THE CITY OF NEWPORT NEWS, Newport News, Virginia,
for Appellee.
2 HUX v. CITY OF NEWPORT NEWS
OPINION
WILKINSON, Circuit Judge:
Plaintiff Jonnie Sue Hux contends that her employer, the City of
Newport News, Virginia, failed to promote her to Fire Captain
because of her gender, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (2000). In its defense, the City
proffers evidence that it promoted male candidates over Hux because
they were better qualified. Plaintiff’s attempt to find pretext in this
neutral explanation consists of comparing herself to individual male
applicants on the basis of isolated promotional criteria, without
acknowledging that those applicants’ qualifications were superior to
hers overall. Her suggestion that summary judgment is precluded by
pinprick objections to an employer’s non-discriminatory justification
would place routine personnel decisions in judicial hands. We thus
affirm the district court’s grant of summary judgment to the City.
I.
Defendant City of Newport News operates the Newport News Fire
Department, which provides, among other things, fire suppression and
emergency medical services (EMS). The Fire Chief, Kenneth Jones,
heads the entire Fire Department. Fire Chief Jones is directly assisted
by two Deputy Fire Chiefs. Fire Captains oversee each twenty-four
hour shift at the City’s ten fire stations. The Fire Captain position is
demanding, and involves a variety of supervisory duties both at the
fire station and during emergency operations. Fire Captains, in turn,
are assisted by Fire Lieutenants. Non-officer positions include Fire-
fighter/Medics, who may themselves earn "Senior" status.
Plaintiff Jonnie Sue Hux commenced employment with the City of
Newport News in 1986 as a dispatcher in the Emergency Communi-
cations Department. In 1990, Hux joined the Fire Department as an
emergency medical technician, and in 1992, the Department assigned
her to a "squad unit," a three-person team consisting of two fire-
fighters and one medic. While Hux did receive basic firefighting cer-
tification as part of her squad service, her work continued to focus
almost exclusively on EMS. The Department subsequently unified its
fire and medical personnel, and it reclassified Hux as a Fire-
HUX v. CITY OF NEWPORT NEWS 3
fighter/Medic in 1995. Hux was later promoted to "Senior" status
even though she did not have the five years of experience that was
typically a prerequisite.
In 1999, Hux applied for a Fire Lieutenant position. Anticipating
that she would not receive the promotion, she filed a discrimination
charge with the Equal Employment Opportunity Commission
(EEOC). As it turned out, Hux was awarded the promotion, and she
withdrew her EEOC charge. She was the first woman in the Depart-
ment appointed to a fire officer position. Unfortunately, however,
major surgery required Hux to take almost 2000 hours of sick leave
during the period between her promotion and September 2003. While
the Department permitted her this leave, being so often away from
work naturally limited her amount of experience as a Fire Lieutenant.
Hux’s tenure as Fire Lieutenant was characterized by continuous
friction with her subordinates and fellow officers. In October 2001,
for example, ten male and female subordinates at Hux’s fire station
wrote a joint letter to Hux’s superiors, complaining that Hux fostered
"antagonistic work conditions" and exemplified "autocratic manage-
ment." According to the letter, Hux "single[d] out subordinates, on an
ongoing basis, to humiliate and frustrate them," and was "intention-
ally defiant and openly critical" of their Captain. For her part, Hux
contends that her Fire Captain was generally unsupportive, and that
her subordinates were rude and unwilling to follow her orders because
she was a female.
On October 11, 2001, the Department transferred Hux to a different
fire station, but the discord followed her to the new location. While
Hux suggests things improved, her new Captain informed Fire Chief
Jones that Hux’s interpersonal interactions were not of "the proper
tone to foster . . . unit cohesiveness." In 2003, Hux received a stan-
dard pay increase, but a Battalion Chief noted on her employment
evaluation that he had spoken with her about her negative attitude and
had asked her to improve. Hux contends that this same Battalion
Chief was disrespectful to her and made it difficult for her to do her
job.
Hux’s problems were not, however, related solely to personality
differences, as the record reveals numerous instances of unprofes-
4 HUX v. CITY OF NEWPORT NEWS
sional behavior. For example, Hux called a subordinate a "stupid
mother fucker" in front of the rest of her firehouse crew following an
incident in which a fire hose was packed improperly. This resulted in
a formal counseling from Fire Chief Jones. In addition, and in the
presence of the Fire Administration staff, Hux insulted a Fire Captain
by proclaiming that he had earned his promotion by "using knee
pads." Other examples include intentionally hanging up on a call to
her fire station, and, in front of others, openly chastising her Fire Cap-
tain as a "wuss" after he decided there had been enough training for
one day. Hux did not deny these allegations in the court below, and
they unfortunately represent only a sampling of the various impropri-
eties found in the record.
Despite this bumpy tenure as Fire Lieutenant, Hux continued to
seek advancement within the Department. Once she had met the
threshold eligibility requirements, including a minimum of two years
service as a Fire Lieutenant, Hux applied for a promotion to Fire Cap-
tain on four separate occasions: February 2002,1 December 2002,
September 2003, and January 2004, the last a reconvening of the Sep-
tember 2003 process. Combined, these four promotion periods filled
nineteen Fire Captain vacancies. Hux was never selected, and all of
the promotions went to male applicants. Hux was the only female
candidate considered in each of the promotion periods because she
was the only woman who met the threshold eligibility requirement of
two years service as a Fire Lieutenant.
Hux filed multiple administrative charges with both the EEOC and
the City alleging gender discrimination in the Department’s failure to
promote her to Fire Captain. After exhausting her administrative rem-
edies, Hux commenced this lawsuit, contending that the Department
failed to promote her because of her gender, and in retaliation for her
filing administrative charges. The district court granted summary
judgment to the City. Hux appeals.
II.
Title VII makes it unlawful for an employer to discriminate against
1
Hux does not challenge the February 2002 promotional process here.
HUX v. CITY OF NEWPORT NEWS 5
an individual because of that individual’s sex. See 42 U.S.C. § 2000e-
2(a)(1). Hux acknowledges that she can proffer no direct evidence of
discrimination, and so elects to proceed under the burden-shifting
scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), and its progeny. See, e.g., Hawkins v. Pepsico, Inc., 203 F.3d
274, 278 (4th Cir. 2000). Plaintiff first must make out a prima facie
case of discrimination, see McDonnell Douglas Corp., 411 U.S. at
802, and we will assume that Hux has done so here. The burden then
shifts to the City to give a legitimate, non-discriminatory justification
for its decision. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000). The City has met this burden by providing
evidence that it did not promote Hux to Fire Captain because male
candidates were better qualified. See, e.g., Evans v. Techs. Applica-
tions & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996). As a result, Hux
must show that this proffered explanation is pretext for intentional
discrimination. See Reeves, 530 U.S. at 142-43. "A plaintiff alleging
a failure to promote can prove pretext by showing that [she] was bet-
ter qualified, or by amassing circumstantial evidence that otherwise
undermines the credibility of the employer’s stated reasons." Heiko v.
Colombo Savings Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006).
The general standards for summary judgment naturally inform any
assessment of whether a plaintiff has provided sufficient evidence of
pretext such that her case may proceed to trial. See, e.g., Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir. 2005);
Mereish v. Walker, 359 F.3d 330, 339 (4th Cir. 2004). As the
Supreme Court has made clear, "trial courts should not ‘treat discrimi-
nation differently from other ultimate questions of fact.’" Reeves, 530
U.S. at 148 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
524 (1993)). Under Federal Rule of Civil Procedure 56(c), summary
judgment is appropriate when "there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a
matter of law." Together, the genuineness and materiality require-
ments express the sound proposition that litigation for its own sake
is not a judicious use of resources. See Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
The summary judgment standards mesh comfortably with the
McDonnell Douglas framework. Once an employer has provided a
non-discriminatory explanation for its decision, the plaintiff cannot
6 HUX v. CITY OF NEWPORT NEWS
seek to expose that rationale as pretextual by focusing on minor dis-
crepancies that do not cast doubt on the explanation’s validity, or by
raising points that are wholly irrelevant to it. The former would not
create a "genuine" dispute, see Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986), the latter would fail to be
"material," see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). And it thus follows that in a suit alleging failure to promote,
a plaintiff seeking to rebut an employer’s reliance on inferior job
qualifications cannot simply compare herself to other employees on
the basis of a single evaluative factor artificially severed from the
employer’s focus on multiple factors in combination. See Anderson,
406 F.3d at 271 (plaintiff "cannot establish pretext by relying on
criteria of her choosing when the employer based its decision on other
grounds"); see also Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 319-20 (4th Cir. 2005).
Brushing aside the materiality and genuineness components of
summary judgment in these cases would in due course substitute
courts for employers as the decisionmakers of last resort in personnel
matters, see Jiminez v. Mary Washington Coll., 57 F.3d 369, 377 (4th
Cir. 1995). Duty-bound though we are to examine employment deci-
sions for unlawful discrimination, we are not cloaked with the author-
ity to strip employers of their basic business responsibilities. See
Anderson, 406 F.3d at 269; DeJarnette v. Corning Inc., 133 F.3d 293,
298-99 (4th Cir. 1998). The obligation of courts to enforce the essen-
tial mandate of anti-discrimination law coexists with the duty not to
invade the province of another in circumstances which the law does
not allow. The summary judgment standards, as applied to the famil-
iar McDonnell Douglas framework, are designed to respect the bal-
ance.
With these principles in place, we turn to the record before us.
III.
The Fire Department conducts the promotional process for Fire
Captain positions on an as-needed basis, and all candidates are inter-
viewed by a panel usually comprised of the Fire Chief and two Dep-
uty Fire Chiefs. Pursuant to Department policy, each member of the
interviewing panel typically ranks the candidates based on the various
HUX v. CITY OF NEWPORT NEWS 7
factors that the Department considers relevant, such as interview per-
formance, years in fire service, Fire Lieutenant tenure, disciplinary
record, overall job performance, and use of leave time. Once each
interviewer has ranked the applicants, the three-member panel meets
to discuss them. The Fire Chief makes all final decisions. Hux raises
challenges to three promotional processes: December 2002, Septem-
ber 2003, and January 2004.
A.
In December 2002, the Fire Department interviewed seventeen
candidates for six Fire Captain vacancies, and selected six men. Every
member of the three-person interviewing panel ranked each of the six
successful male candidates above Hux. Of those six, all had at least
eighteen years of fire service experience, and one, in fact, had twenty-
nine years of experience. Hux, by contrast, had worked in fire service
for only seven years. While it is not incumbent on employers to adopt
a promotion scheme based on seniority, it is certainly permissible for
them to take seniority and experience into account. In addition to fire
service experience, five of the six successful candidates had served as
Fire Lieutenants for at least five years, including one who had served
as a Lieutenant for thirteen years. By this point, Hux had only served
as a Fire Lieutenant for approximately three years. The one successful
candidate who had a slightly shorter Lieutenant tenure than Hux had
other qualifications that she did not possess, including more fire ser-
vice experience, superior employment evaluations, and minimal use
of leave time. Fire Chief Jones ranked him the top candidate, whereas
the highest any interviewer ranked Hux was fourteenth.
The Department also expressed concern that Hux did not possess
the ideal personality traits for a Fire Captain. Fire Chief Jones indi-
cated that Hux "had problems exercising leadership" and was not pro-
moted because "of her need to improve her interpersonal
communication skills." In addition, Hux became emotional towards
the end of her interview. As she explains, "her voice cracked and tears
welled up in her eyes." This was important to the interviewing panel,
which worried that Hux might not possess the composure required to
coordinate a team charged with protecting lives and property under
highly stressful situations.
8 HUX v. CITY OF NEWPORT NEWS
In the September 2003 promotional process, twelve candidates
applied for five Fire Captain openings, and the Department promoted
five men. Every interviewer ranked every successful candidate higher
than Hux, and one interviewer in fact ranked Hux last. In addition,
every successful applicant had at least thirteen years of fire service
experience; Hux had eight. Three of the five, moreover, had served
as Fire Lieutenants for almost twice as long as Hux. The two success-
ful candidates with slightly less experience as Fire Lieutenants both
had more total fire service experience than Hux, had used considera-
bly less leave time, and had more favorable performance evaluations.
Finally, the City contends that Hux did not perform well in her inter-
view, and there were once again concerns about her interpersonal and
leadership skills.
The final promotional process took place in January 2004, and
three men received promotions. As before, all had significantly more
fire service experience than Hux. While two successful candidates
had served as Fire Lieutenants for six months less than Hux, both had
worked at least six more years in fire service, were ranked higher by
every interviewer, had employment evaluations that were equal to or
exceeded Hux’s, and had used less than ten percent of the leave time
she had used. Similarly, while two interviewers did rank the third suc-
cessful candidate below Hux, this candidate had over twenty years of
fire service experience, had served as a Lieutenant for more than three
times as long as Hux, possessed superior evaluations, and had taken
less than half of the leave time that Hux had.
B.
Notwithstanding the foregoing, Hux argues that the City’s conten-
tion that male candidates were more qualified is pretext for unlawful
discrimination. In doing so, however, she would ask this court to miss
the forest for the trees, and disregard the better overall qualifications
of her fellow applicants. In Hux’s view, it is sufficient to compare
herself to those individuals who received promotions on the basis of
the only factor in which she was arguably equal to each one, a factor
which changes with every comparison. This does not satisfy her bur-
den in this case. A plaintiff cannot create a triable issue by selecting
from the many criteria used in the promotions process the one factor
on which he or she may conceivably compare. "By its very terms,
HUX v. CITY OF NEWPORT NEWS 9
[Rule 56] provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly sup-
ported motion for summary judgment." Anderson, 477 U.S. at 247-48.
As we shall explain, Hux’s arguments fall prey to this important limi-
tation.
First, Hux argues that the City’s reliance on her performance prob-
lems, particularly her poor interpersonal and supervisory skills, is a
cover for gender discrimination because three successful male candi-
dates also had performance issues. Hux points out that one, for exam-
ple, was formally counseled for an incident in which he yelled at a
co-worker and locked a medic unit’s brakes. Another was once cited
for conversing with a fellow employee and listening to a football
game during a rescue operation.
These incidents involving other personnel are not indicative of pre-
text. To begin with, they involve isolated episodes that do not com-
pare to Hux’s own chronic problems with personal interactions,
problems that were so severe that her subordinates took the unusual
measure of writing a joint letter to her superiors. This letter stated,
among other things, that Hux "unreservedly demeans and chastises
the actions of subordinates on a regular and ongoing basis" and that
she was "discourteous and holds no respect for any member of [the]
team."
In addition, each of the three candidates with whom Hux compares
herself was significantly more qualified by almost every other metric
the Department considered. One, for instance, had approximately
three times as much fire service experience, a significantly longer Fire
Lieutenant tenure, and also enjoyed better overall evaluations. To find
pretext in the City’s explanation on the basis of these three candi-
dates’ sporadic performance problems would, in short, require us to
elevate a single consideration — which does not, in any event, cut in
plaintiff’s favor — above all others the Department found relevant.
See Anderson, 406 F.3d at 270 (plaintiff "may not choose the areas
in which she wants to compete . . . for the promotion").
Hux alternatively asks that we ignore the ample evidence of her
difficulties working amicably with others. To the extent that Hux con-
tends that supervisory and communication skills are actually not rele-
10 HUX v. CITY OF NEWPORT NEWS
vant job qualifications, we must disagree, for an employer can
"properly take into account" factors such as "good interpersonal skills
and . . . ability to lead a team." Amirmokri v. Balt. Gas & Elec. Co.,
60 F.3d 1126, 1130 (4th Cir. 1995). It is not within our authority to
dictate the factors that employers must weigh in making a promotion,
and we see nothing in Title VII to indicate that Congress wished to
require companies to disregard the successful personal interactions
that make for a productive workplace. This is especially true where,
as here, the employer is charged with protecting the public in serious
emergencies and the plaintiff has experienced problems acting profes-
sionally at work. And while Hux attempts vaguely to pin her various
misadventures on her fellow employees’ unwillingness to cooperate
with a female, this argument is, as the district court noted, based on
Hux’s "own conclusory opinion and rumor alone."
Second, Hux attempts to discern pretext in the City’s reliance on
the fact that she had fewer years of fire service experience than suc-
cessful male candidates. To this end, she focuses her attention on a
single successful candidate, Adrian Hanline. Hux and Hanline both
served for a period on "squad units," small teams comprised of fire-
fighters and medics that were eventually phased out in 1995. Hux
contends that her three years of squad service should count towards
her total fire service experience, as Hanline’s approximately six years
apparently did towards his. Hux, however, served on a squad unit at
a time when its primary responsibilities pertained to EMS — in fact,
as the district court explained, "90-95% of her work on the squad con-
tinued to focus exclusively on providing emergency medical services,
rather than fire suppression." Hanline, by comparison, began serving
on a squad at an earlier point, when it was still heavily involved in
firefighting. Hanline was also promoted during the February 2002
process, which Hux does not even challenge here.
Hux further suggests that most of the calls a fire station receives
are EMS-related, and that any reliance on fire suppression experience
thus lacks credence. This argument must fail, for Hux essentially asks
that we determine whether a Fire Department should be more con-
cerned with firefighting or EMS. Beginning down this road — with
courts acting as strategists that identify the core objectives an
employer should pursue — would bring promotions decisions under
the greenhorn supervision of the federal courts.
HUX v. CITY OF NEWPORT NEWS 11
Third, Hux argues that the City’s reliance on her leave time usage
is pretextual because a successful candidate in the December 2002
process, John Grimsley, had also taken a similarly large amount of
leave due to a major accident. This argument suffers from the same
infirmity as those addressed above, because Grimsley was more quali-
fied than Hux in almost every respect. As of December 2002, Hux
had seven years of fire service experience, approximately three as a
Fire Lieutenant. Grimsley, by contrast, had twenty-six years of fire-
fighting experience, thirteen as a Fire Lieutenant. Grimsley also had
far superior employment evaluations, and Fire Chief Jones deter-
mined that he gave the best interview performance of any candidate.
Grimsley’s leave time, like the other objections Hux raises, fails to
undermine the City’s contention that Hux was less qualified overall
for a Fire Captain position.
Finally, Hux contests the City’s citation of her emotional perfor-
mance in her December 2002 interview, which the City suggests cal-
led into question Hux’s level-headedness in emergency situations.
Hux explains that her emotions may have gotten out of check in her
December 2002 interview because she had heard rumors that she
might be appointed to an office captaincy rather than a field position.
She further notes that she had worked in tense situations before, occa-
sionally as an Acting Captain. Both of these assertions do not, how-
ever, take away from the fact that as Hux acknowledges, she became
visibly upset during her interview, and "it is the perception of the
decision maker which is relevant." DeJarnette, 133 F.3d at 299 (inter-
nal quotation marks and alterations omitted). Interviews are an impor-
tant tool that employers use to make all sorts of hiring decisions, and
we may not lightly overturn the reasonable conclusions an employer
reaches after actually meeting with a candidate face-to-face.2
2
Hux raises various other allegations of pretext, which we have
reviewed and find to be without merit. She also contends that she can
prove discrimination under the mixed-motive approach. See 42 U.S.C.
§ 2000e-2(m); Diamond, 416 F.3d at 317. Hux did not properly raise this
theory below and the district court expressly refused to consider it. But
even if Hux had diligently pursued this argument, we conclude for the
reasons given above that it would not assist her here.
Finally, Hux alternatively contends that the Department denied her a
promotion in later rounds of the process in retaliation for her filings with
12 HUX v. CITY OF NEWPORT NEWS
IV.
We are sensitive to the fact that Hux was one of the first females
to seek advancement in a Fire Department populated predominately
by men. We certainly agree that firefighting skills are not confined to
a single gender. But this proposition does not mean that the decisions
in this case were improperly motivated or driven by anything other
than the needs of Newport News for an effective firefighting service.
In enacting Title VII, Congress sought to eliminate unlawful discrimi-
nation in the employment setting, but it did not endeavor to force
employers to undergo the burdens of trial whenever a plaintiff prof-
fered simply any response to an employer’s non-discriminatory justi-
fications. The City has offered overwhelming evidence that the
successful candidates presented stronger credentials for the position
plaintiff sought. In making and defending its decision, the City was
entitled to focus on the applicants’ qualifications taken as a whole —
a judgment not rendered pretextual by the fact that one among many
factors is allegedly in dispute. To preclude summary judgment here
would diminish the place of qualifications in promotions decisions.
The judgment of the district court is therefore
AFFIRMED.
both the City and the EEOC, which alleged discrimination in earlier
rounds of Fire Captain hiring. We have explained in detail, however, that
both the earlier and later decisions were based on legitimate consider-
ations which reflected neither discrimination or retaliation in the employ-
ment context.