Johnnie Sue Hux began her employment with the City of Newport News, Va., in 1986 as a dispatcher in the emergency communications department. In 1990, she joined the fire department as an emergency medical technician, and in 1992, the department assigned her to a “squad unit,” a team composed of two firefighters and one medic. While Hux received basic firefighting certification during her period of squad service, her work focused almost exclusively on EMS. The fire department eventually merged its fire and medical services and reclassified Hux as a firefighter/medic in 1995. She was later promoted to “senior” status even though she didn't have five years of experience, a typical prerequisite.

In 1999, Hux applied for a fire lieutenant position and was awarded the promotion. This promotion resulted in Hux becoming the first female fire officer in the department's history. She continued to seek advancement within the department. After obtaining the minimum prerequisite of two years' service as a fire lieutenant, she applied for promotion to fire captain on four separate occasions: February 2002, December 2002, September 2003 and January 2004. Hux wasn't selected for any of the 19 vacancies, all of which were filled by male applicants. Hux was the only female candidate considered during the four promotional periods because she was the only woman who met the threshold eligibility requirements of two years of service as a fire lieutenant.

Thereafter, Hux filed multiple administrative charges with both the Equal Employment Opportunity Commission and the city alleging gender discrimination in the department's failure to promote her to fire captain. After exhausting her administrative remedies, Hux filed a lawsuit in federal court contending that the department failed to promote her because of her gender and in retaliation for her filing administrative charges. The federal district court granted summary judgment to the city, dismissing her lawsuit. Hux appealed the dismissal to the U.S. Court of Appeals for the Fourth Circuit.

The court of appeals issued its decision on June 23 in Hux v. City of Newport News, Virginia, F.3d, 2006 W.L. 1719525 (C.A.4 (Virginia)). The court reviewed the legal framework necessary to analyze a case of gender discrimination. Title VII makes it unlawful for an employer to discriminate against an individual because of that individual's sex. Discrimination may be proved by direct evidence of discrimination or through a burden-shifting analysis set forth by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.792 (1973).

In this scheme, the plaintiff employee must first make out a prima facie case of discrimination. If an employee can show some statistical evidence of discrimination, the burden then shifts to the employer to show a legitimate, non-discriminatory justification for its decision. If the employer can meet this burden by providing evidence that it did not discriminate (in this context, that it did not promote the employee because male candidates were better qualified), then the employee must prove that the explanation by the employer is a pretext for intentional discrimination.

In her case, Hux acknowledged that she could offer no direct evidence of direct discrimination and therefore elected to proceed under the burden-shifting scheme. Noting that the city had promoted 19 male firefighters and no women, the court of appeals assumed that Hux had established a prima facie case of discrimination. The burden then shifted to the city to prove that it did not promote Hux to fire captain because the male candidates were better-qualified.

The appellate court reviewed the department's promotional process and the three challenged examinations in detail. (Hux did not challenge the February 2002 promotions.) As with many departments throughout the country, Virginia Beach conducts the promotional process on an as-needed basis. All candidates are interviewed by a panel, usually composed of the fire chief and two deputy fire chiefs. Pursuant to an established policy, each member of the panel typically ranks the candidates based on the various factors that the department considers relevant, such as interview performance, years in the 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.

In December 2002, the fire department interviewed 17 candidates for six vacant positions. With respect to the six men appointed, all had at least 18 years of fire service experience, and one had 29. Hux, by contrast, had worked in the fire service for only seven years. The appellate court noted that “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 their 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 13 years. In contrast, Hux had served as a fire lieutenant for only three years. The one successful candidate who had slightly shorter tenure than Hux had other qualifications which she did not possess, including more fire service experience, superior employment evaluations and minimal use of leave time. The chief ranked this candidate as the top candidate, where the highest any interviewer ranked Hux was 14th.

The department also expressed concern that Hux did not possess the ideal personality traits for a fire captain. The chief noted that she had “problems exercising leadership” and was not promoted because of her “need to improve her interpersonal communication skills.” In addition, Hux became emotional toward the end of her December 2002 interview. As she explained during the litigation process, “her voice cracked and tears welled up in her eyes.” This raised concerns with the panel, who thought Hux might not possess the composure required to coordinate a team forced to operate in highly stressful situations.

In the September 2003 promotional process, 12 candidates were interviewed. Every interviewer ranked every successful candidate higher than Hux. In fact, one interviewer ranked Hux last. In addition, every successful candidate had at least 13 years of fire service experience. Hux had eight. Furthermore, three of the five candidates had served as fire lieutenant for almost twice as long as Hux. The two successful candidates with less experience had more total fire experience than Hux, used considerably less leave time and had more favorable performance evaluations. Finally, the city again argued that Hux did not perform well in her interview, and there were once again concerns about her personality and leadership skills.

The last promotional process to be challenged occurred in January 2004. Of the three men who received promotions, all had significantly more fire experience than Hux. While two of the promoted men served as lieutenants for six fewer months than Hux, both had worked at least six more years in the fire service, were ranked higher by every interviewer, had employment evaluations that were equal to or exceeded Hux's, and had used less than 10% of the leave time she had used. Similarly, while two interviewers did rank the third successful candidate below Hux, this candidate had more than 20 years of fire experience and had served as lieutenant for more than three times as long as Hux, had superior evaluations, and had taken less than half the leave time that Hux had.

In response, Hux argued that the city's contention that the male candidates were more qualified was a pretext for unlawful discrimination, and that it was sufficient to compare herself to those individuals who received promotions on the basis that she was arguably equal to each one — a factor the court noted changed with every comparison. The court held that Hux did not satisfy her burden: “A plaintiff can not 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.”

Hux argued that the city's reliance on performance problems, particularly her personal and supervisory skills, was a cover for gender discrimination because three successful male candidates also had performance issues. For example, one candidate was formally counseled for an incident in which he yelled at a co-worker and locked the brakes of an ambulance. Another candidate once was cited for conversing with a fellow employee and listening to a football game during a rescue operation.

The court held that these isolated incidents did not compare to Hux's own chronic problems with personal interactions, which 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 [the] team.’”

In addition, the court pointed out that each of the three candidates with whom Hux compared herself was significantly more qualified by almost every other metric considered by the department. For example, one candidate had three times as much fire service experience, significantly longer fire lieutenant tenure and better evaluations. The court wrote that “to find pretext in the city's explanation on the basis of these three candidates' sporadic performance problems would, in short, require [this court] to evaluate a single consideration — which does not, in any event, cut in plaintiff's favor about all others the department found relevant.”

Hux also asked the court to ignore evidence of her difficulties of being able to work with others. Hux's tenure as a fire lieutenant was characterized by continuous friction with both her subordinates and fellow officers. In October 2001, 10 male and female subordinates wrote a joint letter to Hux's superiors complaining that she fostered “antagonizing work conditions” and “exemplified autocratic management.” According to the letter, Hux “single[d] out subordinates, on an ongoing basis, to humiliate and frustrate them” and was “intentionally defiant and openly critical of their captain.”

For her part, Hux contended that “her fire captain was generally unsupportive and her subordinates were rude and unwilling to follow orders because she was a female.” Following the letter that was written by her subordinates, Hux was transferred to a different fire station, but the discord followed her there. While Hux suggested that the conditions improved, her new captain informed the fire chief that her interpersonal interactions were not of “the proper tone to foster … unit cohesiveness.”

The record revealed that Hux also had called a subordinate a “stupid mother- [expletive deleted] in front of the rest of her firehouse crew following an incident in which a fire hose was packed improperly.” This had resulted in formal counseling from the fire chief. In addition, in the presence of administrative staff, Hux insulted a captain by claiming he had earned his promotion by “using knee pads.” Other examples presented by the department included Hux intentionally hanging up on a call to her fire station and openly chastising her fire captain as a “wuss,” in front of others, when he decided there had been enough training for one day.

Hux didn't deny these allegations, and the court noted that they represented only a sample of the various improprieties found in the record. In 2003, during the period that the promotional reviews were conducted, Hux received a standard pay increase, but the battalion chief noted on her employment evaluation that he had spoken with her about her negative attitude and had asked her to improve. In response, Hux argued that the battalion chief was disrespectful to her and made it difficult for her to do her job.

To the extent that Hux argued that supervisory communication skills were not actual or relevant job qualifications, the court disagreed, holding that an employer “can properly take into account” factors such as “good personal skills and the ability to lead a team.”

Hux also attempted to discern pretext in the city's reliance that she had fewer years of fire service experience than successful male candidates. To that end, she focused her attention on a single successful candidate. Both Hux and the other candidate served for a period on squad units, which were eventually phased out in 1995. Hux argued that her three years on squad service should count to her total fire service experience because the city included the other candidate's six years toward his seniority. However, Hux served on the squad during a period when its primary responsibilities were for EMS as opposed to fire suppression. The other candidate, by comparison, began serving on the squad at an earlier point when it was still involved in firefighting. More importantly, the alternate candidate was promoted during the February 2002 process that Hux did not challenge.

Hux suggested to the appellate court that because most of the department's current call volume was EMS-related, any reliance on fire service experience lacked credence. The court rejected this argument as well, finding that Hux was essentially requesting that the court determine whether the fire department should be more concerned 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 next argued that the city's reliance on her leave time was pretextual because a successful candidate in the December 2002 process had taken a similar amount of leave due to a major accident. (Major surgery required Hux to take almost 2,000 hours of sick leave during the period between her promotion to lieutenant in 1999 and September 2003. While the department permitted her this leave, being away so often limited her experience as a fire lieutenant.) The court found that this argument suffered from the same infirmity as those addressed previously because the other candidate was more qualified than Hux in almost every respect.

Finally, Hux disputed the city's citation of her emotional performance during her December 2002 interview, in which the city questioned her level-headedness in an emergency situation. Hux provided an explanation for her reaction and further noted that she had worked in tense situations before as an “acting captain.” While the court acknowledged her reasoning, it further held that her explanation didn't take away from the fact that she became physically upset during her interview, and “it is the perception of the decision-maker which is relevant.”

In its conclusion, the court wrote that it was sensitive to the fact that Hux was one of the first females to seek advancement in a fire department populated predominantly by men. The court agreed 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.… In enacting Title VII, Congress sought to eliminate unlawful discrimination in the employment setting, but it did not endeavor to force employers to undergo the burdens of trial whenever a plaintiff proffered simply any response to an employer's non-discriminatory justifications. The city … offered overwhelming evidence that the successful candidates presented stronger credentials.… 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 [dismissal of the case] would diminish the place of qualifications in promotions decisions.”

There are numerous examples throughout the country of fire departments that have discriminated against applicants in both the hiring and promotional processes on the basis of race, sex, religion and nationality. In this case, the City of Newport News was successful in defending allegations of gender discrimination, and several lessons can be learned.

Fire departments must examine the requirements of the position and determine standards by which candidates can be evaluated objectively. Often, examinations are in written form. Written examinations test a candidate's knowledge of firefighting operations or fire service administration. These examinations can be administered blindly, but they don't necessarily test the candidate's leadership skills and ability to think on his or her feet. More departments are now turning to assessment centers to evaluate the candidate's overall ability. Assessment centers are an effective means of selecting the best firefighters for promotion, but the results are more subjective and subject to challenge.

Departments using subjective methodology should include criteria that are easily quantifiable. For example, years of fire service experience, tenure as an officer, and prior written evaluations can be easily calculated and verified upon challenge. In the case against the Newport News Fire Department, significant weight was placed on seniority and tenure by both the department and the court. Additionally, the department's evaluation and disciplinary processes were well-documented, and the department was therefore able to use its prior records to refute the allegations raised by Hux. This attention to record-keeping will assist greatly in refuting claims of discrimination made by an employee. Finally, the department maintained all records relating to the promotional process, including the evaluations made by the panel. These evaluations, subject to review by the court, verified the existence of a non-discriminatory reasons for promoting male candidates before Hux.

Departments should make every effort to design promotional examinations that are non-discriminatory. The examination process should be thorough, and the individual evaluations and overall results well-documented using objective and verifiable criteria.

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.