                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-2063


TIFFANYE WESLEY,

                Plaintiff - Appellant,

           v.

ARLINGTON COUNTY,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:08-cv-00007-CMH-JFA)


Argued:   September 22, 2009                 Decided:   December 7, 2009


Before WILKINSON and MICHAEL, Circuit Judges, and Irene M.
KEELEY, United States District Judge for the Northern District
of West Virginia, sitting by designation.


Reversed and remanded by unpublished per curiam opinion. Judge
Wilkinson wrote a separate dissenting opinion.


John R. Ates, ATES LAW FIRM, PC, Alexandria, Virginia, for
Appellant.   Louise Marie DiMatteo, COUNTY ATTORNEY’S OFFICE,
Arlington, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Tiffanye      Wesley      (“Wesley”),          who    is     an        African-American

female, began her career as a firefighter with the Arlington

County    Fire      Department        (“Department”)         in     1994.          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

Department Fire Chief did not promote her.

       Following        denial       of    these     promotions,          Wesley          filed   an

internal       grievance,        a    complaint       with        the    Equal           Employment

Opportunity Commission (“EEOC”), and, ultimately, this action,

claiming that the Department had denied her the promotions based

on race and gender in violation of Title VII of the Civil Rights

Act.

       The    district     court          granted    the     Department’s             motion      for

summary       judgment,       holding         that        Wesley        had        not     produced

sufficient evidence under the first prong of the burden-shifting

framework      in    McDonnell        Douglas       Corp.    v.    Green,          411     U.S.   792

(1973), to support a prima facie case of discrimination because

she could not show that she was objectively qualified for the

                                                2
position of Captain. In the alternative, it analyzed the second

and    third          prongs    of    the        McDonnell      Douglas       framework     and

concluded that, even if Wesley were qualified, the Department

had        met    its        burden        of     producing       a     non-discriminatory

justification for not promoting her, and Wesley had not shown

that justification to be pretextual. 1

       Wesley urges this Court to overturn the district court’s

award of summary judgment to the Department. Because we find

that       Wesley      was   qualified          for    the   position    of     Captain,   and

produced evidence sufficient to support a jury finding that the

Department’s           proffered       reasons         for    non-promotion       were     mere

pretext,         we    reverse       the    district         court’s    grant    of   summary

judgment and remand the case for trial.



                                                  I.

       Wesley’s         work   experience         includes      periods    within     several

units of the Department. For most of the first five years of her

career, beginning in 1994, Wesley worked in “operations.” 2 The



       1
       On appeal, the parties do not dispute that the Fire
Department met its burden of producing a non-discriminatory
reason for its decision not to promote, as required under the
second phase of the McDonnell Douglas burden-shifting regime. We
agree.
       2
       Wesley was out of operations for approximately                                     seven
months on maternity leave and subsequent light duty.



                                                  3
Department defines operations positions as those on fire trucks,

ambulances, and other front-line assignments. Wesley gained her

operations experience on the crew of a fire truck.

     In    2000,         Wesley     asked    for    and     received    an    instructor

assignment      at       the   Department’s         training       academy.   Over      the

following six years, she spent 20 months at the academy, 46

months    in   other       administrative         positions    (including        community

relations and building inspection), and 27 additional months in

operations.        She    is   currently     a     Deputy    Fire   Marshal      with   the
               3
Department.

     The Department has established a three-stage process for

promotion      purposes.          First,    applicants       who    meet   the    minimum

qualifications in terms of years of experience and education may

take a written examination. The top scorers on this exam then

attend an assessment center that tests practical skills. From

the results of the assessment center, the human resources office

prepares and certifies a list of “qualified” individuals and

forwards it to the Fire Chief for final promotion decisions.




     3
       The Department initially denied Wesley promotion to this
post as well. After she raised the issue in her EEOC complaint,
however, the Department promoted Wesley to the position; thus
the initial denial is not at issue in this case.




                                              4
      After receiving this certified list of candidates eligible

for   promotion,      the    Fire    Chief     convenes    what     is   known    as    a

roundtable.     The     roundtable       is     a    discussion      among       senior

Department personnel about the strengths and weaknesses of each

candidate. Finally, the Fire Chief chooses the candidates who

will be promoted.

      After Wesley received high scores on the written exam and

at the assessment center, she twice successfully secured a place

on the certified list for the position of Captain. As a result,

she was eligible for promotion essentially any time between 2001

and 2005. She was never promoted to Captain, however. According

to deposition testimony and affidavits of the Fire Chief and

other senior personnel, the Fire Chief decided not to promote

Wesley because participants at the roundtables voiced concerns

about her job abilities, experience and performance. Wesley has

produced competing accounts of the conversations and disputes

that these concerns were raised.

      Either before or during the roundtables, reviewing officers

received a promotional sheet for each candidate on which they

could    note      an        applicant’s        strengths      and       weaknesses.

Unfortunately,     no       completed   promotional        sheets    pertaining        to

Wesley   are    available      for   review     as   the   Department      destroyed

them, an act Wesley contends violated Title VII and EEOC record-



                                           5
retention regulations. 4 See 42 U.S.C. § 2000e-8(c), 29 C.F.R. §

1602.31.6.



                                     II.

    We review the district court’s grant of summary judgment de

novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d

277, 283 (4th Cir. 2004). In doing so, we must construe the

evidence   and   any    inferences   in     the   light   most   favorable    to

Wesley, the non-moving party. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).



                                     III.

     The     district    court   granted      summary     judgment    to     the

Department on two grounds. First, it held that Wesley had failed

to prove a prima facie case of discrimination; alternatively, it

found that she had failed to rebut the Department’s proffered




     4
       Wesley argues that the promotional sheets were “personnel
or   employment   record[s]  made   or   kept   by  a  political
jurisdiction,” which must be retained for two years and during
the pendency of any charge of discrimination. 29 C.F.R. §
1602.31. We need not find that a violation of the recordkeeping
law occurred to reach our decision in this case. However, the
Department offers no argument against such a finding beyond
claiming that Wesley did not raise the issue in the district
court and thus waived it on appeal. Wesley notes that she raised
the issue in her memorandum opposing summary judgment.



                                      6
non-discriminatory         reasons    for       not    promoting   her.   We   address

each finding in turn.

                                            A.

       The district court found that Wesley failed to produce and

forecast sufficient evidence to prove she was qualified for the

position of Captain. Following a review of the record in the

light most favorable to Wesley, we conclude otherwise.

       Under the McDonnell Douglas framework, [a plaintiff]
       can establish a prima facie case by showing that (1)
       she is a member of a protected group, (2) she applied
       for the position in question, (3) she was qualified
       for that position, and (4) the defendants rejected her
       application under circumstances that give rise to an
       inference of unlawful discrimination.

Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268

(4th Cir. 2005). Only the third requirement, qualification, is

at issue in this case. As an African-American female, Wesley is

a member of a protected group, and she applied for promotion to

Captain through the proper Department procedures. Previously, we

have held that the fourth element, “an inference of unlawful

discrimination,” is satisfied where a position is filled by an

applicant outside the protected class. Carter v. Ball, 33 F.3d

450,   455    (4th   Cir.    1994).    In       this    case,   several   white     male

firefighters were promoted to Captain instead of Wesley.

       The Supreme Court has characterized a plaintiff’s initial

burden   in    a   Title    VII   case   under         McDonnell   Douglas     as   “not

onerous.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248

                                            7
(1981).    Accordingly,       we    have        described       the    threshold      as

“relatively modest,” Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333

F.3d 536, 545 (4th Cir. 2003)(internal quotations and citations

omitted), and as a “relatively easy test” that may be satisfied

even when there is “no clear-cut indication that race played a

part in choosing the successful applicant.” Young v. Lehman, 748

F.2d 194, 197 (4th Cir. 1984).

     Wesley    urges    this       Court       to   adopt   a    bright-line       rule

preventing    employers      from    using      subjective       qualifications       in

establishing the requirements of a job. Several of our sister

circuits   agree     with    this    limitation.        See,     e.g.,      Vessels   v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005);

Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003); Wexler

v. White’s Fine Furniture, 317 F.3d 564, 575 (6th Cir. 2003)(en

banc);    Jayasinghe    v.    Bethlehem         Steel   Corp.,        760   F.2d   132,

135 (7th Cir. 1985); Burrus v. United Tel. Co. of Kan., Inc.,

683 F.2d 339, 342 (10th Cir. 1982); Lynn v. Regents of U. of

Cal., 656 F.2d 1337 (9th Cir. 1981).

     In contrast, the Third Circuit, in Fowle v. C & C Cola, 868

F.2d 59 (3d Cir. 1989), has held that a bright-line test is

undesirable    and    that,    in    certain        contexts,     “there     could    be

situations where subjective qualifications could be considered

as part of the prima facie case.” Id. at 64.



                                           8
      We need not decide this question here. Even under the more

flexible holding of Fowle, subjective evidence is appropriate

only in exceptional cases, such as where no objective facts are

available    or   appropriate.   Id.        Here,     there   is     sufficient

objective    evidence     in   the        record     to    analyze     Wesley’s

qualifications for the position of Captain.

      By all accounts, Wesley met the minimum objective criteria

to be eligible for promotion to the rank of Captain. She was

eligible to take, and passed, the written test and assessment

center in 2001 and 2003. As a result, the Department rated her

“more than qualified” and put her on the certified lists from

which the Fire Chief could select applicants for promotion.

      Wesley contends that these factors deem her qualified for

the   purpose     of   establishing       her      prima   facie     case.   The

Department, on the other hand, considers these factors merely a

preliminary step, and argues that, to be truly qualified, an

applicant had to demonstrate several other qualities. In support

of its argument, the Department points out that the position

description for Captain set forth several qualifications beyond

the testing hurdles Wesley successfully passed. These included

“considerable experience in the fire department,” “considerable

knowledge”   of   Department   practices,       “[i]nterpersonal       skills,”

and “[p]roblem solving skill[s].”



                                      9
      Some of these factors are at least partially duplicative of

the   threshold       requirements             for     taking   the    Captain’s       exam.

“Considerable       experience,”           for       example,   is    reflected    in    the

minimum years of service required to sit for the test, while

“considerable         knowledge”       and        “problem      solving      skills”     are

indicated      by     an   applicant’s               success    on    the    written     and

assessment      center      portions             of     the     promotional       process.

“Interpersonal        skills”    is        a    vague    and    subjective     criterion,

perhaps best measured by an applicant’s standing in the eyes of

her   peers,    supervisors          and       subordinates;     the    record    includes

multiple       instances        of     Wesley’s           superiors         praising     her

interactions with both coworkers and the public.

      In addition to her success in the testing stages, Wesley

gained generally positive performance reviews. 5 She also served

as an acting captain on numerous occasions, apparently without

incident,      thus    demonstrating            she     could   in    fact    perform    the

duties required of the position.


      5
       The record indicates that Wesley had a series of minor
vehicle accidents, including one in 2002 resulting in a
disciplinary letter and the loss of eight hours of vacation
time. Yet the Department can hardly argue that such reprimands
disqualify a firefighter from promotion: in 2002, the Department
promoted an employee to Captain who had been suspended for
forty-five days, barred from ever applying for promotion to
other firefighter positions, and told that his actions at an
accident scene endangered a patient’s life.




                                                10
       Wesley’s applications failed only at the roundtable stage.

Although the Fire Chief and other Department personnel claim

that decisions at that point were made on various objective and

subjective     factors      related       to        Wesley’s    job    performance        and

qualifications, it appears the Fire Chief’s decision at this

point was entirely discretionary. Under the Department’s theory

of qualification, only those persons actually selected by the

Fire Chief would appear to be qualified applicants. Such a rule

would forestall nearly any plaintiff from meeting her initial

burden under the McDonnell Douglas burden-shifting regime.

       The Department’s evidence on this issue consists largely of

the deposition testimony of the Fire Chief and other management

personnel regarding Wesley’s experience and job performance. The

Chief and his subordinates repeatedly allege that concerns were

raised,      primarily      at    the     roundtable        stage,         about    Wesley’s

performance at the training academy and the relatively minimal

time   she    had    spent       in    operations         positions.        Unfortunately,

because the Department failed to preserve the records of the

roundtable     discussions,           little    documentation         of    these    alleged

conversations survives.

       Nevertheless, Wesley has proven her prima facie case even

if we consider the affidavits and deposition testimony related

to   the   roundtable       discussions.            At   this   stage,      she    need   not

establish     that    she    was       the     most      qualified     person       for   the

                                               11
position, only that she met the job requirements and thus was

qualified for the position of Captain. Her written reviews from

her time as a trainer and her other documented evaluations were

positive. The affidavits and deposition testimony of the Fire

Chief and other personnel related to the roundtable discussions

are only evidence that management had concerns about her skills

and performance. These issues are relevant at later stages of

the   analysis,    but    not   to   whether        she     actually   possessed   the

requisite qualifications.

      Therefore,     we    hold      that        Wesley’s     positive   performance

reviews, her documented achievements as a firefighter, and her

success on the objective phases of the promotional process are

sufficient to establish that she was qualified for the position

of Captain. 6

                                            B.

      After     determining     that    Wesley        was     unqualified    for   the

position of Captain, the district court alternatively analyzed

the   two     remaining    prongs      of    the     McDonnell     Douglas    burden-

shifting framework and concluded that Wesley could not show that

the Department’s non-discriminatory reasons were mere pretext.




      6
       We do not understand the dissent to disagree with the
conclusion that Wesley met this initial burden of showing that
she was objectively qualified.



                                            12
       [T]he plaintiff—once the employer produces sufficient
       evidence to support a nondiscriminatory explanation
       for its decision—must be afforded the “opportunity to
       prove by a preponderance of the evidence that the
       legitimate reasons offered by the defendant were not
       its   true   reasons,   but  were   a   pretext   for
       discrimination.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143

(2000)(quoting Burdine, 450 U.S. at 253).

       The Department offers two main justifications for the Fire

Chief’s failure to promote Wesley: she lacked the experience and

capabilities of many other candidates who were promoted; and the

Fire    Chief’s     senior     officers     informed        him   of    problems      with

Wesley’s       performance.       Although          these      justifications          are

sufficiently plausible on their face to meet the Department’s

burden under McDonnell Douglas, we are persuaded that Wesley has

raised genuine questions of material fact about whether they are

mere pretext for discrimination.

                                      1.

       While     the   Department      did         establish      that     Wesley      had

relatively few total years in operations when compared to some

other applicants, a current Department 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.     Wesley     also    has

established that the training academy position she held, which

                                            13
the Department now discounts as non-operations experience, was a

traditional stepping-stone to Captain. 7

      As evidence that its concern about Wesley’s limited field

experience was addressed before the litigation, the Department

points to communications attempting to convince Wesley to leave

the   teaching     position     for     operations.    Yet    it     was     entirely

reasonable for Wesley to remain in the training academy for two

reasons. First, as noted above, she had seen many employees use

the training academy post as a finishing school for promotion to

Captain. Second, the request to remove Wesley from the training

academy came only a few weeks before she was to begin working

with a new class of recruits. Her supervisor at the academy

strongly opposed her removal. Furthermore, after she completed

the course, Wesley did in fact return to an operations position.

      The Fire Chief makes much of certain qualifications and

certifications      held   by    various       applicants     for     the    Captain

position.   Specifically,        he     asserts    that      he     highly     valued

Advanced    Life     Support         (“ALS”)    certification        when      making

promotion    decisions.         He     also    cites      Hazardous         Materials

(“hazmat”) and technical rescue certifications. Wesley had none

      7
       During the relevant time period, at least seven male
firefighters were promoted to Captain after serving at the
training academy. All applicants with instructor experience were
promoted in 2003 except Wesley, another female applicant and a
male who had been cited for driving under the influence.



                                         14
of   these   certifications.     Yet    participants           of    the    roundtables

dispute      whether      the   Fire     Chief          ever        discussed      these

certifications      during      these    sessions,             and     whether         they

constituted a major factor in promotional decisions. J.A. at

228. Notably, the department failed to promote not only Wesley,

but also the other two women on the 2003 qualified list, even

though they both held the ALS certification. Especially where

the Department has destroyed any records of these conversations,

it was improper for the district court on summary judgment to

credit the affidavits and testimony of some participants (namely

the Fire Chief) over other contradictory accounts.

        Furthermore, if the Fire Chief’s version of his decision is

to be believed, he valued every certification or qualification

that Wesley did not have, and discounted any factor on which she

might have been viewed favorably. The Department highlights that

one applicant had experience running his own business, and that

another had worked on an inter-jurisdictional task force. Yet

the Fire Chief allegedly gave no or little weight to leadership

training, public relations roles, or acting captain experience,

all of which Wesley possessed. Importantly, not every Captain

within the Department is assigned to drive a fire truck or an

ambulance.    The   job    description       in    the    position         announcement

lists    “supervisory,     administrative         and    technical         work   in    the

Fire Department.” Indeed, the recruiting position that Wesley

                                        15
held, and which the Department now criticizes as non-operational

experience, was elevated to a Captain-level post after Wesley

moved on to other assignments.

       The     purported      importance        of     some      marginally       relevant

qualifications         and    disregard     of       other,       seemingly      pertinent

aspects of Wesley’s career raise a genuine question of material

fact as to whether the overall set of criteria now set forth is

an accurate picture of the decisional framework in place at the

time.       See DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th

Cir.       1998)(“[I]t   is    not   our   province         to    decide       whether    the

reason was wise, fair, or even correct, ultimately, so long as

it truly was the reason.”)(emphasis added).

                                           2.

       The     Department’s      assertion           that     the       Fire    Chief     was

concerned       with     Wesley’s    “uneven”          performance         is    similarly

suspect. The Department initially asserted that negative items

in   Wesley’s     personnel      file,     arising      in       1997    and    1999,    were

relevant to the Fire Chief’s decision not to promote her to

Captain. 8 Yet the Fire Chief himself testified that, while he

knew of these issues, they did not influence his decision. This


       8
        Apparently Wesley had some difficulty refreshing her
skills after time on maternity leave in 1997, though subsequent
reviews indicate no such problems. In 1999, she was involved in
a minor vehicle accident.



                                           16
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 searching Wesley’s

file    for     any       damaging     piece        of     information      that       could

conceivably        have    justified     the    Fire        Chief’s    decisions.       See

E.E.O.C.      v.     Sears   Roebuck     and        Co.,    243     F.3d    846,   852-53

(2001)(inconsistent          reasons    and     post-hoc        rationalizations        are

“probative of pretext”).

       The    Department’s      shifting       explanations         continued      to   the

very close of the case before the district court. In its reply

brief on summary judgment, the Department, for the first time,

produced an affidavit from a training academy recruit alleging

first-hand knowledge that Wesley slept at the academy when she

was supposed to be supervising students – an accusation Wesley

strongly denies. Yet this affidavit does not purport to show

that the recruit ever relayed this information either to the

Fire Chief or to anyone who attended the roundtables; thus, it

cannot be known whether this information was relevant to the

Fire Chief’s state of mind at the time of his decisions. 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 forty-five day suspension.

Clearly,      performance      and     discipline          issues    were    not   always

sufficient      to    deny    promotion.       We     therefore       conclude     that   a

                                          17
reasonable jury could find the Department’s proffer of these

performance issues merely pretextual. 9



                               IV.

     For   the   foregoing   reasons,   we   hold   that   Wesley   has

established a prima facie case of discrimination, and has shown

that genuine issues of material fact exist as to whether the

Department’s     proffered   non-discriminatory     reasons   for   its

decision not to promote her are mere pretext for discrimination.




     9
       The dissent urges that we not substitute this Court’s
judgment for that of the employer. However, we must similarly
not invade the province of the jury and weigh the credibility of
witnesses and evidence on contested issues of fact. We make no
ultimate judgment on whether the reasons offered by the
Department are pretextual. Instead, reviewing the limited and
contradictory evidence in the record in the light most favorable
to Wesley, we only hold that a reasonable jury could reach such
a conclusion. Unlike this Court or the district court on summary
judgment, a jury will be able to hear and see the testimony of
witnesses, presumably including Wesley and Department officers.
Additionally, the jury may lay the dueling evidence side by side
and find some of it more credible and weighty. We are bound not
to do so here. Although the dissent considers Wesley’s case
“regrettably weak,” she has proffered substantial evidence
(including the Department’s own records, and affidavits from
several senior officers) contradicting the recollections of the
Fire Chief and others. Together, they are more than sufficient
to support a jury finding of pretext.



                                  18
     Accordingly, we reverse the order of the district court

granting summary judgment and remand the case for trial. 10



                                             REVERSED AND REMANDED




     10
        Because we reverse the district court’s order of summary
judgment and remand for trial, we need not address that court’s
decision to deny Wesley’s motion to strike certain affidavits
that the Department attached to its reply brief on summary
judgment.



                                19
WILKINSON, Circuit Judge, dissenting:

       I thank my colleagues for their thoughtful opinion, but I

must   respectfully          dissent.        Because     the    record      in   this     case

provides      no   reasonable        basis    to    infer      that   the     Department’s

reasons for not promoting Wesley were false, much less that the

actual    reason       was    race    or     sex,    her    claims      must      fail.    In

remanding for trial, however, the majority unfortunately assumes

the role of “super-personnel department weighing the prudence of

employment     decisions.”         DeJarnette       v.   Corning,      Inc.,      133     F.3d

293, 299 (4th Cir. 1998) (internal quotation omitted).

       The Department produced three legitimate non-discriminatory

reasons    for      not      promoting       Wesley:       relative      to      the    other

candidates, she had less operations experience, less technical

skill, and a less distinguished record of prior performance. To

prevail, Wesley must be able to show not only that these reasons

are false but also “that discrimination was the real reason.”

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

       First of all, there is no dispute that Wesley had fewer

total years in operations than the candidates who were promoted

and    that     this      factor      was     discussed        at     the     roundtables.

Operations experience refers to time spent serving on the crews

of fire trucks or ambulances.                The majority attempts to minimize

this uncontroverted fact by noting that Wesley was said by one

senior officer to have as much experience on fire trucks (as

                                             20
opposed   to      ambulances)          as     some      of   the    candidates      who    were

promoted.        But this testimony is neither here nor there.                         He did

not dispute that the Department did, in fact, base its decision

on    Wesley’s        relative        lack     of      total   operations         experience.

Rather,     he     simply      disputed           whether,     in    his     judgment,      the

Department should have based its decision on that fact.                                     But

“[w]e cannot require that different supervisors within the same

organization must reach the same conclusion on an employee's

qualifications and abilities.” Anderson v. Westinghouse Savannah

River Co., 406 F.3d 248, 272 (4th Cir. 2005).

      There      is     also     no     dispute         that   Wesley      knew     that    her

superiors wanted her to gain more experience in operations, that

she chose to remain in non-operations positions despite their

concerns, and that her choice was discussed at the roundtables.

The majority attempts to discount these facts by stating that it

was   “entirely         reasonable”         for     Wesley     to   remain    in    her    non-

operations job at the training academy. Maj. Op. at 14.                                    But

whether   or      not    the   decision           seemed     reasonable      from    Wesley’s

perspective is irrelevant.                   “[W]e have repeatedly explained that

it is the perception of the decision maker which is relevant.”

DeJarnette, 133 F.3d at 299 (internal quotation and alteration

omitted).        And from the Chief’s perspective, Wesley declined the

opportunity       to    obtain    the        very      experience    that    she    knew    was

necessary to put herself among the top candidates for Captain.

                                                  21
     The     majority     seeks     to        downplay       the     importance     of

operational    experience      by    pointing          out    that     “not    every”

captainship required such experience.                 Maj. Op. at 15.          But it

is not racial or sexual animus for a fire chief to want captains

who are fully capable of assuming operational duties on fire

trucks or ambulances, which, after all, is what the Department

is about.     The majority further attempts to discount Wesley’s

relative lack of operations experience by noting that she did

eventually    return     to   operations.             But    Wesley     returned    to

operations for only sixteen months before choosing to transfer

back to a non-operations position. During her return, she was

involved in three vehicle accidents between April and June of

2002 and consequently received an unsatisfactory rating on a key

element of her job performance.               Moreover, the short duration of

her return was discussed at the roundtables.

     Turning to the Department’s second reason, it is undisputed

that the candidates promoted had at least one of the following

certifications:        advanced     life        support        (ALS),      hazardous

materials, or technical rescue.                Wesley, however, had none of

these.       The   majority       states       that      “participants        of   the

roundtables dispute whether the Fire Chief ever discussed these

certifications during these sessions.”                  Maj. Op. at 15 (citing

J.A. 228).      To be sure, two roundtable participants did not

recall whether “special consideration” was given to candidates

                                         22
who   were     paramedics,    i.e.      those    who    held     ALS    certification.

J.A. 228, 312-13.         But those two participants did not deny that

ALS or other certifications were discussed and thus given some

consideration.       Indeed, the whole point of the roundtables was

to discuss such matters.           At most, there is a question about how

much weight was given to a particular certification, but there

is no question that Wesley lacked that certification.

        The majority’s real concern seems to be that the Chief did

not give enough weight to Wesley’s other qualifications.                        In its

view, the Chief valued other candidates’ “marginally relevant”

qualifications      but     disregarded     Wesley’s       “seemingly      pertinent”

ones. Maj. Op. at 16.              I do not understand how the majority

distinguishes       between    the      “marginal[]”       and    the    “pertinent.”

Among    the    “marginal[],”      it    places      one   candidate’s      leadership

role in an inter-jurisdictional task force, which according to

the Chief, “required [the candidate] to manage complex personnel

and technical situations.”              J.A. 30.       But among the “pertinent,”

it    places     Wesley’s     experience        in     public    relations.       More

generally, as the majority rightly acknowledges, “it is not our

province to decide whether the reason was wise, fair, or even

correct,       ultimately,    so   long     as    it    truly    was     the   reason.”

DeJarnette, 133 F.3d at 299 (internal quotation omitted).                          The

mere fact that the majority would weigh certain undisputedly

relevant qualifications differently is hardly a reason to infer

                                           23
that the Department is prevaricating -- much less discriminating

on the basis race or sex.

      Turning to the Department’s third reason, it is undisputed

that Wesley had a relatively spotty performance record, that the

Chief was aware of her record, and that her record was discussed

at    the   roundtables.              The    majority,      however,       faults      the

Department for offering “shifting explanations.” Maj. Op. at 17.

To establish this, it compares the Department’s interrogatory

responses    to        the   Chief’s    deposition.         In    its    interrogatory

responses,        the        Department      listed       several        instances      of

unsatisfactory          performance       from    Wesley’s       personnel       records.

These included a 1997 incident in which Wesley performed poorly

as a pump operator and then showed little initiative to improve

and a 1999 incident in which she was involved in a vehicle

accident while responding to a call.                      To be sure, the Chief

later stated that, while he was aware of these two particular

incidents,        he     probably       deemed     them     too     stale        for   his

consideration.          But his statement is not a reason to infer that

the Department has been offering shifting explanations.                                The

Department never claimed that Wesley was not promoted because of

one   or    two    particular         incidents.        Rather,     it    consistently

maintained    that       she    was    not   promoted     because   of     her    general

reputation for poor performance -- most recently reinforced by

her involvement in three vehicle accidents in 2002.                         Indeed, the

                                             24
interrogatory response in question does not purport to say that

the 1997 and 1999 incidents were major factors in the Chief’s

decision;      instead,       it    points     to      them      only     as    part       of     a

“persistent         pattern   of    concerns”       about        Wesley’s      performance.

J.A. 99.        If there is any inconsistency at all between the

interrogatory         responses      and     the       Chief’s       statement,           it     is

negligible.         It goes only to which of the various instances of

poor performance in Wesley’s past stood out the most to the

Chief -- not to whether he was aware of the instances at the

time of his decision or whether he ever wavered in his overall

assessment that her performance was poor.

       In     its    continuing      effort       to     portray        the    Department’s

explanations as “shifting,” the majority also points out that

the Department submitted an affidavit late in the litigation

from   a    training     recruit     who     stated         that    Wesley      fell      asleep

during      classes    she    was    supposed       to      be     teaching         and    lacked

knowledge      of     basic   concepts.       It       is    hard    to       see    how       this

affidavit is evidence of an inconsistent explanation, given that

the    Fire    Chief    and    several       battalion        chiefs      had       previously

stated in their affidavits that such concerns were raised at the

roundtables.         To be sure, two panel participants did not recall

these concerns being discussed.                   But to label the Department’s

position as shifting because of the recruit’s affidavit, as the

majority does, is simply incorrect.

                                             25
     The    majority   attempts      to    bolster       its     argument    that   the

Department did not actually base its decision on Wesley’s spotty

performance record by pointing out that the Fire Chief promoted

someone to Captain in 2002 despite an even spottier record.                           It

is   telling   that    the     majority        must      reach     outside    of     the

limitations period for Wesley’s suit to find someone who was

promoted with a record that was arguably worse than hers. *                           It

does not point to a single blemish in the personnel files of the

six individuals promoted during the period of her suit, despite

the fact that those files are in the record. See J.A. 400-768.

Nor does it contend that Wesley matched up against those who

actually received the promotion.                 What is more, the majority

fails to note that the position of Fire Chief was held by a

different    individual   in    2002      than      in   the     period   covered     by

Wesley’s    suit.      That    the     new     chief      may     have    taken     past

performance more seriously than his predecessor is no reason to

infer that he discriminated against Wesley.

     The    majority   suggests      that      it   is    merely    respecting      the

“province of the jury” by declining “to weigh the credibility of

witnesses and evidence on contested issues of fact.” Maj. Op. at


     *
       Under the statute of limitations, Wesley’s suit covers
only the period from October 2004 to August 2005, during which
the Department promoted six individuals. Wesley v. Arlington
County, 2008 WL 4774480, at *4 (E.D. Va. Oct. 24, 2008).



                                          26
18, n.9.      But this argument misses the point.              The only thing in

dispute here is whether the Chief’s decision was wise or not --

a   point    which   can     be    debated    with   respect   to   every    single

decision to promote but which is not a material issue under

Title VII.      The majority does little more than second-guess the

Fire Chief’s decision, but it is not our role nor within our

competence to do so. This is especially true where, as here, the

position involved is critical to public safety and demands a

very specialized skill set.              The Captain of a fire truck must

not only possess technical capabilities and extensive experience

but also command the respect of his or her team. Otherwise, the

morale and efficiency of that team may crumble, resulting in

serious injury to both persons and property.

      I recognize that historically the officer ranks of fire and

police departments have not been as open to minority and female

officers as they should have been. And yet, as the district

court noted and the majority does not contest, the Department

has   in    recent   years    promoted       well-qualified    African-Americans

and women to various positions at rates comparable to the rates

for   white    males.        See    Wesley    v.   Arlington   County,      2008   WL

4774480, at *3 (E.D. Va. Oct. 24, 2008). This case is, however,

regrettably weak.       The promotion in question should be earned at

the stationhouse -- not the courthouse.                 With full respect for



                                         27
my able colleagues, I would affirm the judgment of the district

court.




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