Wilson v. City Of Chesapeake et al

Filing 65

OPINION AND ORDER: The City's Motion for Summary Judgment (ECF NO. 52) is GRANTED, and the Clerk shall enter judgment in favor of the Defendant City of Chesapeake on all three Complaints in the consolidated case. Copies of this Order sent on 2.12.18. Signed by Magistrate Judge Douglas E. Miller and filed on 2/12/2018.

FLED
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

FEB 1 2 2018

Norfolk Division
CLERK. US DISTRICT COURT

Jupiter Dennell Wilson,

NQPFOI.K. VA

Plaintiff,
CIVIL ACTION NO. 2:16cv301
CIVIL ACTION NO. 2:16cv629

V.

CIVIL ACTION NO. 2:16cv711

City of Chesapeake,
Defendant.

OPINION AND ORDER

In this consolidated employment discrimination action filed by Firefighter Jupiter
Dennell Wilson, the City of Chesapeake moved for summary judgment (ECF No. 52). The City
argues the evidence is insufficient to permit a reasonable juror to conclude Wilson was subject to
an adverse employment action as a result of his age or race, or in retaliation for prior complaints
of discrimination.

Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem.") (ECF No. 53). The

City's 50-page motion is supported by declarations from fifteen witnesses, Wilson's own

deposition, and numerous exhibits. Wilson filed a brief opposing summary judgment, attaching
his own sworn declaration in support. (ECF No. 58).

After reviewing the exhibits and evidence the parties have submitted in contest of the
summary judgment motion, this court concludes that Wilson has not produced evidence of
adverse employment actions or of a similarly situated comparator necessary to establish a prima
facie case, or to rebut the City's proffered non-discriminatory reasons for the choices it has made
regarding Wilson's training and promotion. Accordingly, as explained in greater detail below,

the court will GRANT the City's Motion for Summary Judgment (ECF No. 52).

I.

FACTUAL AND PROCEDURAL HISTORY

Jupiter Wilson is a black man over the age of 40. He has been and remains employed as

a firefighter with the Chesapeake Fire Department ("CFD"), where he has worked since 1996.
The events relevant to his claims in this court all occurred during and after 2011. The court

summarizes those events below, relying on the parties' declarations and an agreed stipulation of
facts—^but viewing any dispute of fact in the light most favorable to Wilson.

Wilson filed a number of claims against the City of Chesapeake with the Equal

Employment Opportunity Commission ("EEOC"), all related to his access to training and
eligibility for promotion. Each of these was dismissed. He subsequently filed four separate
complaints against the City. This court dismissed the first of these outright. Wilson v. Citv of
Chesapeake. 2015 WL 11116781, at *1-2 (E.D. Va. 2015),

2015).

615 F. App'x 810 (4th Cir.

This court also previously dismissed any claims for hostile work environment and

discrimination based on disparate impact.'

Order (ECF No. 20); Order, Wilson v. Citv of

Chesapeake. No. 2:16cv629 (E.D. Va. May 26, 2017); Order, Wilson v. Citv of Chesapeake. No.
2:16cv711 (E.D. Va. May 26, 2017). But Wilson's race and age discrimination claims under

Title VII or the Age Discrimination in Employment Act in his other three Complaints survived

the City's motions to dismiss.^ Because the claims remaining in all three Complaints allege
overlapping facts, they were consolidated—^though not merged together—^under the first filed
and lead case, No. 2:16cv301. Mem. Order (ECF No. 39).

' Although Wilson seemed to make disparate impact discrimination claims in two of his three Complaints, these
claims were never properly presented to the EEOC. The court therefore dismissed them for lack of subject matter
jurisdiction. Order, Wilson v. Citv of Chesapeake. No. 2:16cv629, at 6-7 (E.D. Va. May 26, 2017); Order, Wilson
V. Citv of Chesapeake. No. 2:16cv711, at 5-7 (E.D. Va. May 26, 2017).

^A common theme throughout this litigation has been thedifficulty of parsing Wilson's legal arguments. The court
has construed his pleadings as liberally as possible to accommodate his lack of counsel.
Corr.. 612 F.3d 720, 722 (4th Cir. 2010).

Brown v. N.C. Dep't of

A.

The Chesapeake Fire Department's Fire Promotional Process.
In 2011, the Chesapeake Fire Department established a new system to select firefighters

for promotion to leadership positions within the department.^

In the Department's Fire

Promotional Process ("FPP"), all personnel interested in being considered for promotion are

evaluated and ranked against each other at the end of June in every odd-numbered year. When a
position opens into which a firefighter could be promoted, the Fire Department offers the
position to employees in order of most-qualified to least-qualified. The ranking of the promotion

list is achieved using a written examination, an in-person evaluation of a firefighter's responses
to various scenarios intended to assess judgment and knowledge, and a review of the firefighter's

"professional history synopsis," essentially an assessment of his resume as a fire professional. In
the summer of 2015, for instance, 35 firefighters were qualified for promotion to lieutenant and
were ranked against each other on the promotion list. Over the next two years, 15 positions
opened, and the vacancies were filled by offering them to the highest-ranked firefighters on the
promotion list. Stipulations at 3 (ECF No. 63).

One of the significant changes in the new FPP was that, starting with the 2013 promotion

cycle, to be considered for advancement to lieutenant, firefighters must have been "released"—

certified—^to "act out of title" before they could be placed on the promotion list. A firefighter
acts out of title by assuming the duties of an absent officer. The onus is on the aspiring officer to
train for release to act out of title: there is no requirement that the Department train its

firefighters for release to act above their paygrade.

Wilson Dep. at 180 (ECF No 53-8).

Although the FPP required firefighters to be qualified to act out of title before being placed on

the promotion list, there was no quota or minimum amount of acting out of title time required of
^The City considers "firefighter" a rank rather than a generic term for all employees ofthe Department. Lieutenant
is the rank just above firefighter; captain is senior to lieutenant, and chiefs oversee the captains.
lieutenants are responsible for managing one shift in one firehouse.

In general

a firefighter before she could be promoted. The FPP was widely advertised in the Department
during its roll-out. Fire Department leadership distributed videos to firehouses explaining the
new program and made information on the program available to firefighters through the

Department's computer network.

Stipulations at 2-3 (ECF No. 63). Wilson knew of the

changes to the program and knew that he would have to be released to act out of title to be

included in the FPP for 2013. Wilson Dep. at 196 (ECF No. 53-8) (Counsel for the City: "[Y]ou
had two years of knowing this qualification was due; is that correct?" Wilson: "Yes.").
B.

Wilson's Access to Training Generally.
In response to generalized allegations fi:om Wilson that the City denied him access to

training that would have made him more competitive for promotion, the City has summarized his
training records, focusing in particular on the training he received in the period since 2011.
Every firefighter employed with CFD has a training "matrix" identifying specific training

courses she needs to complete in order to qualify and remain qualified for her specific job.
Firefighters are permitted to submit requests to participate in training outside of their matrix to
supplement their mandated skills and proficiencies. Training requests are routed through the
firefighter's supervising officer at her station, then on to her battalion chief, and finally to the

Department's Training Division. The Training Division considers each request, including any
comments or recommendations from the firefighter's leadership, and reaches one of three
conclusions: she might be permitted to attend the training with the sponsorship of the
Department; she might be allowed to attend the training but be required to take leave and pay the

costs of the training on her own; or the firefighter might not be allowed to attend the training at
all. Stipulations at 14 (ECF No. 63).

Wilson requested to attend and was approved to attend many out-of-matrix courses in the

five years since 2011. For some of these, including the Virginia Fire Officer's Academy, the
Department funded Wilson's attendance. The city permitted Wilson to attend other courses but

did not sponsor them. Still other training requests by Wilson the Department denied entirely.
^14 at 14-18.

Wilson has not comprehensively described how or why he feels the Department's
handling of his training regimen was inadequate, let alone inadequate due to race or age

discrimination.

During his deposition, Wilson did say he felt it was unfair that, in 2011,

Firefighter Danny Ward"* was permitted to attend a Juvenile Firesetter class after Wilson's
request to attend the same class was denied. Wilson did not explain why he felt Ward was
similarly-situated to him, however, or why he was disadvantaged by having to wait to take the

course the next year. There is no dispute that Wilson completed the Juvenile Firesetter classes in
September and November of 2012. Training Certificates (ECF No. 53-23 at pp. 42-43).

Wilson also appears to argue in his deposition testimony that the Department did more to
facilitate training for other firefighters than it did for him. Namely, Wilson said the Department
allowed other firefighters to use official vehicles to attend training so they did not have to travel
using their personal vehicles. Wilson Dep. at 216-17 (ECF No. 53-8). The City contends this is

because firefighters who attend training while on duty are permitted to use official vehicles.
Wilson himself was permitted to use an official vehicle to attend a training event in Richmond,

Virginia, on September 11, 2015. Stipulations at 18 (ECF No. 63). Wilson has not identified
any firefighter who he claims attended training off-duty using an official vehicle.

'* Neither party has directed the court to evidence regarding Danny Ward's age or race.
5

Capt. Lawrence Matthews, CFD's Training Director, reviewed Wilson's training record.

Capt. Matthews said "[Wilson] has received comparable, if not more, training opportunities as

similarly-situated younger, white firefighters in the Chesapeake Fire Department."^ Matthews
Aff.atKll (ECFNo. 53-22).
C.

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

Wilson's primary claims of discrimination relate to the training he received in order to be
eligible to act out of title and the number of opportunities he was afforded to act out of title once
released. Wilson requested to be considered for promotion in the 2005, 2007, 2011, 2013, and

2017 promotion cycles.

He qualified to be included on the promotion list in each cycle,

although, because of the new requirement that applicants for promotion be certified to act out of

title, Wilson almost missed being included in 2013. With the deadline for certification looming
on June 30, 2013, Wilson still had not been released to act out of title.

At some point between May 2011 and August 2012, Wilson first contacted his

supervisor, Lt. Duane Daggers, about undergoing the training he needed to qualify to act out of

title. Because Wilson was only assigned to Lt. Daggers temporarily for training to recertify as an
emergency medical technician, Lt. Daggers refused this request. Wilson Dep. at 185 (ECF No.
53-8). Wilson was subsequently reassigned in August 2012 to a permanent position under Lt.

Mark Disharoon at Station 7. In September that year, soon after his re-assignment, Wilson
contacted Battalion Chief William Ackiss, the officer with overall responsibility for Station 7

and several others, to ask what the criteria were for being released to act out of title. Ackiss
informed him of the need to coordinate training through his direct supervisor, Lt. Disharoon.

According to Wilson, Disharoon had previously discouraged Wilson from applying for

^Neither Wilson nor the City has presented more comprehensive evidence regarding other firefighters' access to
out-of-matrix training. Capt. Matthews' assessment is the only evidence before the court comparing Wilson's
access to training to other firefighters' across the Department.
6

promotion, saying, "[A]nybody that wants to be a lieutenant is stupid or retarded." Wilson Aff.
at 5, 8 (ECF No. 58-2). Wilson was out of work on medical leave in October and on vacation in

November. Because Lt. Disharoon was preparing to retire from the Department in December,
Wilson chose not to pursue the training required for release to act out of title until a new

lieutenant was assigned to his shift at Station 7. Wilson Dep. at 202-206 (ECF No. 53-7).
Shortly thereafter. Chief Ackiss sent Wilson an email explaining the criteria to be released to act
out of title. Ackiss Aff. at 2-3 (ECF No. 53-6).
Lt. Jerry Bohn was assigned to manage Wilson's shift at Station 7 in January 2013. By

the City's own admission, he was a tough officer. Bohn and Wilson had a tense relationship,

making the other personnel on their shift uncomfortable with "constant loud arguments."^ After
Bohn leamed Wilson hoped to be included on the promotion list during the 2013 cycle, Bohn
discouraged Wilson from pursuing the promotion. Wilson still sought to be considered for
promotion, though he knew he remained ineligible to be included on the list because he had not

been released to act out of title. Therefore, in May 2013,^ he met with Bohn and Ackiss to
discuss training necessary to be released in time for the June 30, 2013, deadline to be included in

that year's FPP cycle. Although the training needed for release to act out of title is usually
undertaken over the course of six months or a year. Chief Ackiss agreed to allow Wilson to

complete the training on a much-compressed timeline. He intended for Wilson to receive his
certification before the June 30, 2013, deadline for inclusion on the promotion list for the next

two-year cycle. Bohn disagreed with this course of action, but at Ackiss' direction, Bohn began
training Wilson until Bohn was transferred away from Station 7 in early June. Ackiss directed

^ Wilson offers no evidence that this antagonism was due to Wilson's race or age. Indeed, other firefighters also
complained regarding Bohn's leadership style. See, e.g.. Kreisel Aff. at 2 (ECF No. 45-1).

' During his deposition, Wilson offered no explanation about why he waited solong after Bohn's assignment to
Station 7 to seek him out for training. Wilson Dep. at 206 (ECF No. 53-7).

several other officers to continue Wilson's training. Ackiss Aff. at 6(ECF No. 53-6). Chief

Ackiss monitored Wilson's training until, on June 28, 2013, Chief Ackiss released Wilson to act

out of title. Wilson does not dispute that he received the training necessary to act out of title and
was therefore eligible for the 2013 FPP, but he contends he was discriminated against by having

to complete the training on an accelerated basis. Wilson Aff. at 18 (ECF No. 58-2). This
allegation was the basis for his first charge to the EEOC in July 2013. Charge of Discrimination
(July 12, 2013) (ECF No. 53-14).

C.

Wilson's Difficulties Getting Time as Acting Officer.
Wilson's claims he was denied opportunities to serve as the acting officer in charge of a

shift.

He appears to argue this constitutes a denial of training he needed to compete for

promotion. Wilson makes both "macro" and "micro" claims that he was denied such training

opportunities. Out of all employees in the Department, he has identified several younger, white
colleagues whom he alleges have received more acting out of title opportunities over the course
of the four years since he was released to act out of title. He has also identified three discrete

incidents in which he says he was denied an opportunity to act out of title. Although it is not
clear why, Wilson has implied that these denials related to his race or age.

On the macro level, Wilson has identified many firefighters in the department who,
between June 30, 2013 and November 1, 2017, acted out of title more times than he did.
Q

According to records Wilson generated using CFD's human resources records, he has acted out

of title on 45 occasions over that time. Spreadsheet, Ex. 8 to Wilson Dep. (ECF No. 53-9, 5310). In that same period, other firefighters have acted out of title over one hundred times. Still

®
Although the city does notmaintain a record of how much time each employee has spent acting outoftitle, Wilson
has assembled a spreadsheet containing this information from the city's personnel scheduling system. The City does
not dispute the accuracy of the spreadsheet. Accordingly, the court accepts it as admissible for the purposes of
resolving this motion either as a business record itself or as a summary of business records. See Fed. R. Evid.
803(6)(b), 1006.
8

others have acted out of title far fewer times than Wilson. The exhibit itself does not establish

that any of the firefighters are younger than Wilson or caucasian.

However, in Wilson's

declaration, he identifies three firefighters who are younger and caucasian and did, according to

his spreadsheet, spend more time acting out of title than he did. Wilson Aff. at 23 (ECF No. 58-

2). According to Wilson's spreadsheet, Brian Atkins acted out of title 132 times, Jeremy
Brittenham 100 times, and Bryan Soriano 104 times since June 30, 2013. Id.; Spreadsheet, Ex. 8
to Wilson Dep. (ECF No. 53-9, 53-10). Wilson does not allege any of these firefighters was

assigned to Station 7 where Wilson worked or reported to the same supervisor as Wilson.
Notably, the only other firefighters released to act out of title and assigned to Wilson's shift at

Station 7 were Firefighter William Copeland, who acted out of title seven times, and Firefighter
Nicholas Novellino, who acted out of title 60 times according to Wilson's spreadsheet. Id

The City's declarations contend that opportunities to act out of title only arise when an
officer is unavailable to manage a shift. The number of opportunities therefore varies widely
from station-to-station and shift-to-shift based on the officers' scheduled leave, training, and
even sickness. Wilson Dep. at 123-124 (ECF No, 53-7). Although opportunities to act out for

short absences generally rotated between released firefighters, when an officer was going to be
absent for more than a few hours or days, her position was offered to the firefighters on the
promotion list in descending order based on their ranking. Hoag Aff. at 5 (ECF No. 53-11). No
long-term acting out of title opportunity has been offered to Wilson because he never ranked
highly enough on the promotion list to be offered one. Id
On the micro level, Wilson has also identified three occasions in which feU he should

have been allowed to act out of title but was kept from doing so allegedly because of his race or
his age. In the first, on September 25, 2013, Station 7 was so short-staffed that they were unable

to man all of their vehicles. The lieutenant who succeeded Bohn, Lt. Francis Cherry, was not on
duty, so Wilson assumed he would be assigned as the acting officer. Notwithstanding Wilson's
belief, Chief Ackiss assigned a firefighter from another station, Fred Harris, to allow them to

sufficiently staff the shift. Fred Harris had been released previously to act out of title at his home
station, and Chief Ackiss knew Station 7's fire engine had unique handling on the backroads that

make up Station 7's area of responsibility. Because Harris had no experience driving the unusual
fire engine on the unusually difficult roads around the Station, Ackiss assigned Harris to be
acting officer, allowing Wilson to drive the fire engine Harris had no experience with. Ackiss

Aff at 7 (BCF No. 53-6). Like Wilson, Harris is a black man over the age of 40. Harris Aff
(ECF No. 53-16). This incident led to Wilson lodging his second charge with the EEOC.
Charge of Discrimination (Jan. 13, 2014) (ECF No. 53-17).
In the second incident, on January 29, 2014, Wilson had been scheduled to attend a

training session away from Station 7. Lt. Cherry and all other firefighters released to act out of

title were on leave that day, so Chief Ackiss assigned Thomas Ricardi, a firefighter from a
different station who was released to act out of title, to supervise the shift at Station 7. Ricardi is
a white man over the age of 40. Stipulations at 10-11 (ECF No. 63). When a snowstorm came
up that forced the cancellation of Wilson's class, he reported to Station 7 for duty instead of
going to the cancelled training. Ricardi served as acting officer over Wilson and the rest of the
firefighters on shift for approximately two to three hours before Chief Ackiss realized he had
more firefighters qualified to act out of title at the station than he needed, put Wilson in charge of

the shift, and moved Ricardi to another station. Id at 10; Ackiss Aff at 8-10 (ECF No. 53-6).
This incident led Wilson to lodge his third charge with the EEOC. Charge of Discrimination
(July 14, 2014) (ECF No. 53-20).

10

In the third incident, on October 24, 2014, Lt. Cherry called out sick. By the informal
rotation of the firefighters released to act out of title at the station, it was Wilson's turn to serve
as acting officer. Firefighter William Copeland, one of the other personnel on Wilson's shift
released to act out of title, mistakenly assumed the role of acting officer because he did not know

about the rotation. Copeland is a white male over the age of 40. Copeland Aff. (ECF No. 5313). There is no evidence from the parties that Wilson objected to Copeland's assuming the
acting officer role. Id; Wilson Aff at 22-23 (ECF No. 58-2). Part of the way through the day,
Copeland realized his mistake and offered to let Wilson take his next acting out of title

opportunity since Copeland had taken Wilson's on that day. Wilson seemed upset with the error
but acquiesced to Copeland acting out of title for the day. Copeland Aff. (ECF No. 53-13).
D.

Wilson's 2015 Performance Evaluation.

Wilson also takes issue with a comment entered in the performance evaluation he

received from his supervisor in2015. In that evaluation, his supervisor, Lt. Cherry^ made a note
about the October 24, 2014, incident between Copeland and Wilson regarding whose turn it was

to act out of title. Cherry wrote,

[D]uring this last evaluation period there was an issue with acting officer
information that was not appropriately passed on and as a result there was an issue
with who should have acted on that particular day. The firefighter that did act
was unaware of the acting rotation that had been reiterated at an earlier shift
meeting because he was out on sick leave. Upon my return to duty it was
necessary to call a shift meeting to reinforce the importance of crew
responsibilities no matter who is on duty. This incident directly effected [sic]
company cohesiveness and given the time and experience level of this crew there
in [sic] no room for future incidents of this nature. With that being said, since the
occurrence of that incident, all parties have moved forward to improve company
cohesion.

' Lt. Cherry was a black male also over the age of40. Stipulations at4 (ECF No. 63). Unfortunately, hepassed
away prior to discovery commencing in the litigation.
11

Performance Evaluation (Apr. 23, 2015) (ECF No. 53-28). Wilson took these remarks badly.
Although he admits his overall evaluation in 2015 was "strong," Wilson Deposition at 225 (ECF
No. 53-9), he blames this comment for his being passed over for a merit-based pay raise and not

selected for promotion. Am. Compl., Wilson, No. 2:16cv711, at 5 (Feb. 16, 2017); Charge of

Discrimination, Ex. 5 to Compl., Wilson. No. 2:16cv711, at 5 (Feb. 16 2016) (ECF No. 1-5).
The City has produced evidence—^which Wilson has been unable to contradict—^that his
evaluation in 2015 played no part in the Department's deciding not to award Wilson a meritbased pay increase or in any iteration of the FPP.

Stipulations at 21 (ECF No. 63).

The City maintains a Merit Pay Program to reward high-performing employees. For its

portion of the program, the Fire Department selects personnel for a merit-based pay raise on the
basis of a nomination from another member of the Department. Once a nomination is submitted,
the nominee's supervisors must then endorse the nomination either favorably or unfavorably. Id
at 20. In the Operations Division, the division to which Wilson was assigned, the battalion

chiefs meet to consider the nominations submitted from their organization.

Of particular

importance to this case, the battalion chiefs in the Operations Division do not consider the
performance evaluations of the nominees. The battalion chiefs choose nominations to forward

on to the second-in-command of the department, the Deputy Fire Chief. The Deputy Fire Chief
screens the nominations forwarded to him to ensure the employees meet the minimum

requirements for a merit-based pay raise, one of which is that their performance evaluation rating
be at least "Solid Performance."The Deputy Fire Chief then presents the nominations to the

CFD's performance evaluation scores are based on a supervisor assigning numerical scores from 1 to 5 in a
variety of performance categories, including "driving skills and knowledge of fire district," "participation in study
and training programs," and "physical fitness," among others. These scores are assigned a weight and then averaged
to produce an overall score from 1 to 5. The overall score will fall within one of five descriptive performance rating
categories. "Unsatisfactory performance" is the lowest, and "outstanding performance" is the highest. A firefighter
must have a performance evaluation score in the "solid performance" range or higher to be eligible for a merit-based
12

Fire Chief, who chooses the final nominees to be submitted for the City Manager's ultimate

decision who will receive a merit-based pay raise. Stipulations at 20 (ECF No. 63).
Wilson's 2015 nomination had a convoluted path. An officer from outside Wilson's shift
and station, Lt. Joyce Jenkins, submitted a nomination for him on the day of the deadline for
nominations.

Because the nomination was submitted so close to the deadline, Wilson's

immediate supervisor, Lt. Cherry, did not have time to complete a written endorsement on the
nomination before Battalion Chief Ackiss and Division Chief Ellis reviewed it.

Both chiefs

recommended that Wilson's nomination not go further in the nominating process. When the
battalion chiefs met to consider the nominations, they called Lt. Cherry for his input on Wilson's
nomination. Lt. Cherry concurred with Wilson's nomination, but was not "enthusiastic" in his

concurrence. Wooten Aff. at 14 (ECF No. 53-15). The panel of battalion chiefs decided not to

forward Wilson's nomination to the Deputy Fire Chief Again, the panel reached this decision
without reviewing Wilson's—or anyone else's—^2015 performance evaluation. Ackiss Aff. at 15
(ECF No. 53-6); Wooten Aff (ECF No. 53-15).

The Deputy Fire Chief, as a part of his screening of the nominees for the merit-based pay
raise, compiled a list of all nominees and their basic employee information. He included the
performance evaluation score—^though not the performance evaluation narrative comments—^for
all nominated employees to ensure their scores were in the "Solid Performance" range or higher.
The Deputy Fire Chief did not include Wilson's score because, as a result of the nomination

having been submitted so late, the score had not been submitted as a part of Wilson's nomination
package. Because the panel of battalion chiefs had chosen not to send Wilson's nomination to

pay raise. "Solid performance" is a numerical score of 2.75 to 3.74. See Wilson Performance Evaluations (ECF No.
53-26 to 53-28); Fermil Aff. (ECF No. 53-29).
13

the Fire Chief, the Deputy Chief did not fill out this field for Wilson by reaching out to Chief
Ackiss or Lt. Cherry for the performance evaluation score. Fermil Aff. (ECF No. 53-29).
Wilson's 2015 performance evaluation was also unrelated to his low-ranking on the 2015
and 2017 promotion lists. The FPP ranks firefighters on the basis of a written examination, a

review of a candidate's video-taped performance in assessment exercises, and a review of the
firefighter's "Professional History Synopsis." (ECF No. 53-3). None of these three pieces of the

evaluation includes a consideration of the firefighter's performance evaluations. The fact that
Wilson was not ranked higher on the 2015 and 2017 promotion lists has to do with his
performance in these three assessments, not on the performance evaluation Lt. Cherry gave him
in 2015. Fire Promotional Policy (ECF No. 53-3).
E.

Wilson's Evidence of Incidents Unrelated to His Complaints.

In his declaration, Wilson also goes into some detail regarding two incidents that appear
unrelated to any of the allegations presently before the court. The first was his failure to properly
recertify as an Emergency Medical Technician-Enhanced in 2010. Wilson Aff at 9-13 (ECF No.

58-2). Wilson appears to claim the city discriminated against him because of his age or race by
failing to ensure that he attend a course in 2009 to recertify as an Emergency Medical
Technician-Enhanced.

Id

Because Wilson neglected to attend the course, his certification

lapsed. Although certification was a job requirement, Wilson was not let go or furloughed but
was required to attend additional training to restore his certification.

Id

The second incident Wilson complains of concerns his interaction with the family of a
deceased patient he transferred to a hospital. Id at 14-16. The hospital staff complained to the
Department that Wilson had inappropriately communicated to the family that the patient had

died, contravening the hospital's notification procedures. Wilson denies that told the family of

14

their relative's passing, but he did offer to pray with them. Hospital officials who witnessed the
prayers surmised that Wilson had informed the family. Wilson claims the counseling letter he

received afterwards was a result of animus against him because of his age or race. Id
Neither of these incidents relates to the claims Wilson raised in his Complaints or in any

of his four previous charges of discrimination.

Am. Compl. (ECF No. 8); Third Am.

Compl., Wilson v. Citv of Chesapeake. No 2:16cv629 (E.D. Va. Feb. 16, 2017); Am. Compl.,

Wilson V. Citv of Chesapeake. No 2:16cv711 (E.D. Va. Feb. 16, 2017). In addition, Wilson's

unrebutted descriptions of each incident provide no evidence that either one related to his race or
age.

Consequently, the court does not consider them in its resolution of the City's present

Motion for Summary Judgment (ECF No. 52) on the consolidated case.
IL

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 requires the court to grant a motion for summary
judgment if "the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett. 477 U.S. 317, 322-24 (1986). "A material fact is one 'that might affect the outcome of

the suit under the governing law.' A disputed fact presents a genuine issue 'if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.'"

Spriggs v.

Diamond Auto Glass. 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Libertv Lobby.
Inc.. 477 U.S. 242, 248 (1986)).

The party seeking summary judgment has the initial burden of informing the court of the

basis of its motion and identifying materials in the record it believes demonstrates the absence of
a genuine dispute of material fact. Fed. R. Civ. P. 56(c); Celotex. 477 U.S. at 322-25. When the

moving party has met its burden to show that the evidence is insufficient to support the

15

nonmoving party's case, the burden shifts to the nonmoving party to present specific facts
demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp.. 475 U.S. 574, 586-87 (1986).

In considering a motion for summary judgment, "the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make credibility determinations or
weigh the evidence," Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133, 150 (2000); see

also Anderson. 477 U.S. at 255. "[A]t the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial." Anderson. 477 U.S. at 249.
III.

A.

ANALYSIS

Title VII and ADEA Claims of Disparate Treatment Due to Race or Age.

Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). Similarly, the ADEA makes it unlawful for

an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate
against an individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C. § 623(a)(1); see also Gross v. FBL
Fin. Servs.. 557 U.S. 167, 170 (2009). As discussed above, Wilson's EEOC charges did not

assert claims for disparate impact.

As a result, to the extent any of his Complaints can be

construed to allege a disparate impact violation, such claims were dismissed previously in the
case. 42 U.S.C. § 2000e-5(f)(l); 29 U.S.C. § 626(d)(1); Balas v. Huntineton Inealls Indus.. Inc..
711 F.3d 401, 407 (4th Cir. 2013) ("[After an EEOC complaint, in] any subsequent lawsuit

16

alleging unlawful employment practices under Title VII, a federal court may only consider those
allegations included in the EEOC charge."); Order, Wilson v. City of Chesapeake. No.
2:16cv629, at 6-7 (E.D. Va. May 26, 2017); Order, Wilson v. City of Chesapeake. No.

2:16cv711, at 5-7 (E.D. Va. May 26, 2017). He is therefore limited to his disparate treatment
and retaliation claims.

To state a prima facie claim of disparate treatment due to race or age discrimination,
Wilson must show (1) membership in a protected class; (2) satisfactory job performance; (3) an
adverse employment action; and (4) more favorable treatment of someone outside the protected

class with comparable qualifications. Arthur v. Pet Dairv. 593 Fed. Appx. 211, 219 (4th Cir.
2015); Coleman v. Md. Ct. App.. 626 F.3d 187,190 (4th Cir. 2010); Goode v. Cent. Va. Legal

Aid Soc'v. 807 F.3d 619, 626 (E.D. Va. 2014) (citing Causev v. Balog. 162 F.3d 795, 802 (4th
Cir. 1998)).

The City's extensively documented Summary Judgment Motion asserts that Wilson has

not suffered any adverse employment action, and to the extent any action was adverse, he has not
produced any evidence of discrimination. To proceed to trial on his Title VII and AEDA claims,

Wilson must produce sufficient evidence fi-om which a reasonable juror could conclude that the
City's actions were detrimental to his employment and due to Wilson's race or age. Young v.

Lehman. 748 F.2d 194, 196 (4th Cir. 1984). This evidence may be either direct or indirect.
Direct evidence includes such things as discriminatory statements made by a relevant decision
maker from which a jury could infer a discriminatory motive. Taylor v. Va. Union Univ.. 193
F.3d 219, 232 (4th Cir. 1999) (enbanc). Indirect proof requires evidence on all of the elements
of Plaintiffs prima facie case of discrimination. Under this theory, Wilson has the burden to

establish (1) that he is a member of a protected class; (2) that he suffered an adverse employment

17

action; (3) that he was performing his position at a level that met CFD's legitimate expectations,
and (4) that similarly situated employees outside the protected class received more favorable
treatment. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802 (1973); Coleman. 626 F.3d at
190.

If Wilson succeeds in establishing a prima facie case of discrimination, the burden shifts
to the City to articulate a legitimate nondiscriminatory reason for his firing. Hill v. Lockheed
Martin Logistics Msmt.. Inc.. 354 F.3d 277, 285 (4th Cir. 2004). If the City meets this burden,
Wilson must then introduce sufficient evidence from which a jury could conclude that the City's
stated reason was merely a pretext for its intentional discrimination. McDonnell Douglas. 411

U.S. at 804. "A plaintiff's prima facie case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133,
148 (2000).

Wilson offers no direct evidence of discrimination against him.

Throughout the

allegations in all three Complaints and his 70-page declaration, he has presented no evidence of
derogatory statements, writings, or actions by his supervisors or colleagues which were explicitly
based on his race or age. To be sure, Wilson attributes a racial or age-based motive to the acts
underlying his Complaints. His pleadings are rife with provocative language describing his
alleged mistreatment, some of it racially-tinged.But none of these statements is attributed to a
co-worker or supervisor. By contrast, the City has produced evidence that no such statements or

conduct occurred.

Copeland Aff. (ECF No. 53-13); Kreisel Aff at 1, 4 (ECF No. 54-1).

Because Wilson has no direct evidence of discrimination, he must rely on the McDonnel

"

Pl.'s Show Cause to Deny Att'y's Fees at2 (ECF No. 50) ("While growing up, Plaintiff have [sic] learned

how not to oppose whites in white persons' authority, becausegenerallywhites have retaliatedagainst Plaintiff.").
18

Douglas burden-shifting framework to prove disparate treatment by indirect evidence. But his
indirect evidence of discrimination is likewise insufficient.

The City concedes Wilson meets the first two factors of the McDonnel Douglas test.

Wilson is a member of a protected class—due to either his age or his race—and his work
performance over the course of his employment has been satisfactory. Def.'s Mem. at 32 (ECF
No. 53). The City's Motion therefore turns on elements three and four: whether Wilson has
offered evidence from which a reasonable juror conclude that he suffered an adverse

employment action and that similarly-situated younger or white peers received more favorable
treatment.

An adverse employment action is one that negatively affects the "'terms, conditions, or

benefits' of the plaintiffs employment." Richardson v. Richland Ctv. Sch. Dist.. 52 F. App'x
615, 616 (4th Cir. 2002) (citing Von Gunten v. Marvland. 243 F.3d 858, 866 (4th Cir. 2001),
rev'd on other grounds. Burlington N. & Santa Fe Rv. Co. v. White. 548 U.S. 53 (2006)). In the

typical case for employment discrimination, an adverse employment action comes in the form of
"an ultimate employment decision," i.e. hiring, firing, demotion, or nonselection for promotion.

See Pearv v. Goss. 365 F. Supp. 2d 713, 722 (E.D. Va. 2005) (citing Von Gunten. 243 F.3d at

865). But less severe action may qualify as an adverse employment action if it "adversely
affected 'the terms, conditions, or benefits' of the plaintiffs employment." Von Gunten. 243
F.3d at 865 (citing Mundav v. Waste Mgmt. of North America. Inc.. 126 F.3d 239, 242 (4th Cir.

1997)). Simply because an employee finds a decision by her employer unappealing does not

make that decision a qualifying adverse employment action. For instance, requiring an employee
to use a personal vehicle for work travel even though she would be reimbursed for doing so was

not an adverse employment action. Von Gunten. 243 F.3d at 867. A negative rating on an

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employee evaluation that did not impact the employer's decision to award her a raise was not an
adverse employment action.

Id. at 868.

Reassigning an employee to a less-pleasant work

location that did not result in a salary decrease, hinder her advancement, or put her in any added

physical peril is not an adverse employment action. Pearv. 365 F. Supp. 2d at 723-26. The
statute itself fixes the only bright line rule, but absent demotion, firing, or the failure to hire and
promote, other adverse employment actions must generally impact an employee's pay, potential

for continued employment, or likelihood of promotion within the organization.
In addition to identifying an adverse employment action, for each one identified, a proper
comparator under McDonnel Douglas must be "similar in all relevant respects." Havwood v.
Locke. 387 Fed. App'x 355, 359 (4th Cir. 2010). To provide indirect evidence of discrimination,

the comparator must have "dealt with the same supervisor, [been] subject to the same standards
and . . . engaged in the same conduct without such differentiating or mitigating circumstances

that would distinguish their conduct or the employer's treatment of them for it." Id (quoting
Mitchell V. Toledo Hosp.. 964 F.2d 577, 583 (6th Cir. 1992)). And, of course, the comparator

must have been treated more favorably than the Plaintiff with respect to the adverse action
complained of Havwood. 387 Fed. App'x at 359.

The failure to establish a dispute of material fact on either the adverse employment action
or the comparator elements would be fatal to Wilson's case. Coleman. 626 F.3d at 190. As
Wilson's claims fall into four factual categories, the court will take them each in turn to

determine whether he has offered evidence creating a dispute of fact necessitating a trial on
either of these two elements.

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1.

Denial of General Training Opportunities.
Wilson claims that he was denied opportunities to attend training courses and, as a

consequence, was less competitive for promotion to lieutenant during the biannual FPP cycles.

The only evidence'^ he offered during the litigation substantiating this claim was the observation
that a firefighter named Danny Ward^^ was approved to attend a specific training course in 2011.
Wilson testified he had asked to attend the same course in 2011 but that this request was refused.
His records reflect he was able to attend the course a year later.
Wilson offers no explanation for why he believes Ward was sufficiently similarly situated

to be a proper comparator. Nor does he explain why he believes attending this single course in
2011 would have increased his chances of promotion with CFD. Thus his evidence that he was
provided this training later does not amount to an adverse employment action, and Ward is not a
proper comparator.

Wilson also does not explain why he would have been promoted if he had taken this one

class in 2011, particularly when he attended the same course the next year and also attended
many other training courses.

Stipulations at 14-18 (ECF No. 63); Matthews Aff at

11

(ECF No. 53-22) ("[Wilson] has received comparable, if not more, training opportunities as

similarly-situated younger, white firefighters in the Chesapeake Fire Department."). Because he

failed to establish these two elements under the McDonnel Douglas analysis, Wilson has offered
no evidence from which a reasonable juror conclude that he was discriminated against by being
denied access to general training opportunities because of his race or age.

The only other evidence offered from either party comparing Wilson's training record to other firefighters' is from
CFD's training director, Capt. Lawrence Matthews. Capt. Matthews opined that Wilson "has received comparable,
if not more, training opportunities as similarly-situated younger white firefighters in [CFD]." Matthews Aff. (ECF
No. 53-22).

To reiterate, the court is forced to assume without evidence from the parties that Ward is not a member of a
protected class under Title VII or ADEA.
21

2.

Abbreviated Training Plan in Preparation to Act out of Title.
Wilson also asserts he was forced to complete his training to act out of title in too short a

period of time for the training to be effective. Wilson Aff at 18-19 (ECF No. 58-2).

He

apparently claims he would have been more competitive for promotion if he had been trained

over the normal months or years a CFD firefighter usually takes to get released rather than the
six weeks he took to do it under Chief Ackiss' supervision.

Wilson's argument falls short for three reasons.

First, he again identifies no proper

comparator, simply averring, "the normal policy stated that training would take six months to

two years." Wilson Aff at 18 (ECF No. 58-2). Even assuming that, by implicitly naming all

firefighters in the department released to act out of title, Wilson had properly identified a
similarly situated comparator, he again fails to explain how the training he did receive was so
inadequate that it kept him from being properly qualified to compete for promotion. He offers

no evidence or argument to explain why the accelerated nature of the training program made it
deficient. He therefore fails to create a dispute of material fact as to whether he was subject to an
adverse employment action at all on this claim.
Additionally, even if he had raised a dispute of fact as to the two McDonnel Douglas

elements, Wilson fails to acknowledge that the compressed timeline for being released to act out

of title was due in large part to his own decision not to pursue training to act out of title earlier.
Wilson Dep. at 180 (ECF No 53-8) (Counsel for the City: "[D]o you agree... that it's the

firefighter's responsibility to pursue opportunities toward being released to serve as acting
officer?" Wilson: "Yeah, I guess it would be,"). He has offered no evidence to rebut this

legitimate, non-discriminatory reason for his shortened training period or to suggest that it was a
pretext on the City's part to deny him a training opportunity because of his race or age.

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3.

Limited Number of Opportunities to Act out of Title.
As explained above, Wilson makes two different arguments about being denied

opportunities to act out of title.

At the departmental level, he identifies several firefighters who he alleges are younger

than him, white, and received more opportunities to act out of title. Since June 30, 2013, Brian
Atkins acted out of title 132 times, Jeremy Brittenham 100 times, and Bryan Soriano 104 times.
Spreadsheet, Ex. 8 to Wilson Dep. (ECF No. 53-9, 53-10). Although not asserted directly, the
court infers that Wilson believes that these firefighters' experience acting out of title prepared
them better for promotion selection than his schedule of 45 shifts acting out of title. But even if

the court were to assume that having more acting out of title opportunities is sufficient to have
made a material impact on a firefighter's training for promotion, Wilson still fails to explain why
these three firefighters are comparators under the McDonnel Douglas framework.

A proper

comparator must have "dealt with the same supervisor, [been] subject to the same standards

and... engaged in the same conduct." Havwood. 387 Fed. App'x 355, 359. The City has
produced evidence that these three firefighters were assigned to different stations and worked for
different supervisors than Wilson.

Stipulations at 13 (ECF No. 63).

And Wilson has

acknowledged that these different circumstances would bear on the number of acting out of title
opportunities each firefighter received. Wilson Dep. at 123-124 (ECF No. 53-7). Because the
alleged comparators had significantly different circumstances of employment with the City, they
are not proper comparators. Wilson offers no contrary evidence.

Wilson also offers three incidents in which he says he was denied a discrete opportunity

to act out of title because of his age or race. The greatest flaw in Wilson's argument here is that

he fails to articulate any basis to conclude that these three discrete instances of acting out of title

23

opportunities had any material impact on the tenns and conditions of his employment. When a

firefighter serves as the acting officer in charge of the shift is practical experience of the position
to which she or he aspires. Wilson offers no reason why he would have been more competitive
for promotion if he had any one or all three of these extra shifts of acting out of title experience.
Therefore, Wilson has failed to explain how any of these discrete incidents qualify as adverse
employment actions requiring relief under Title VII or the ADEA. They do not.
Additionally, because one of the incidents involved Harris, a black man over the age of

40, only Ricardi and Copeland may serve as proper comparators for Wilson.

White v. BFI

Waste Servs.. LLC. 375 F.3d 288, 295 (4th Cir. 2004). While Ricardi and Copeland are both
Caucasian, only Copeland served under the same supervisor as Wilson. Thus only Copeland is a

potentially proper comparator. See, e.g., Havwood. 387 Fed. App'x at 359. However, with
respect to both incidents, the City has offered legitimate, nondiscriminatory reasons why Ricardi
and Copeland acted out of title for the shifts in question. In the case of Ricardi, Wilson was not

scheduled to work.

When his supervisor learned Wilson had come to work, Wilson was

promptly designated as acting officer for the shift. The circumstances of Copeland's acting out
of title conflict were reviewed in detail by Wilson's supervisor, Lt. Cherry. He concluded the
mishap resulted from a miscommunication.

Wilson Performance Evaluations (ECF No. 53-

26 to 53-28). Wilson provides no contrary evidence. In fact, he has not contradicted Copeland's
statement that Wilson essentially acquiesced to the shift assignment when Copeland offered to

allow him the next acting out of title opportunity to make up for the error. Copeland Aff (ECF
No. 53-13).

24

4.

2015 Performance Evaluation Comments.

On this claim, Wilson takes issue with a comment Lt. Cherry included in Wilson's 2015

performance evaluation, writing that Wilson needed to improve his communication skills. The
conmient arose from Wilson's conflict with Copeland over the October 24, 2014, acting out of

title shift. Wilson asserts that this comment was responsible for him being passed over both for a
merit based pay raise and for promotion.
As with all of his allegations, Wilson has offered no evidence that his 2015 performance

evaluation had anything to do with his race or age. Chief Ackiss, Cherry's supervisor, has

averred that, on the basis of his communications v^th Lt. Cherry about the evaluation, he felt the
comment was a "fair and appropriate" treatment of Wilson's performance.

Ackiss Aff at 13

(ECF No. 53-6). On the issue of comparators, Wilson identifies no firefighter in the Department
who, after engaging in conduct like the communication failure for which Wilson was counseled,

was not also critiqued in their performance review. Accordingly, Wilson fails to identify any
evidence creating a dispute of fact as to the existence of a proper comparator.
Also, Wilson has offered no evidence to rebut the City's evidence that the comments had

no impact on his being passed over for a merit based pay raise or promotion. This is strong
evidence that the comments were not an adverse employment action.

In Van Gunten. the

employee still received a pay raise in spite of an allegedly unfair score on a performance
evaluation. 243 F.3d at 867. A negative rating on the employee's evaluation that did not impact

the employer's decision to award a raise was not an adverse employment action. Id at 868.

That score was not an adverse employment action because it did not have an adverse impact on
the employee's pay. Similarly here, Wilson offers nothing to suggest the derogatory comments
had an effect on his pay or his promotion potential. The City has specifically declared that it did

25

not.

Stipulations at 21, H77 (ECF No. 63) (Wilson and the City agree "the [merit pay] panel

did not consider or review Wilson's—or anyone else's—2015 performance evaluation,"); Fire

Promotional Policy (ECF No. 53-3) (no consideration of annual performance evaluations in
FPP). As a result, it was not an adverse employment action entitling him to relief under either
Title VII orADEA.

B.

Title VII Retaliation Claims

In addition to his claims of disparate impact on the basis of his race or age, Wilson claims

he was retaliated against because of his complaints to the EEOC and multiple law suits against
the City. As with his discrimination complaints, Wilson's retaliation claims are not stated with

precision. Instead, he has essentially assigned an additional retaliatory motive to every allegedly
discriminatory act after his first complaint to the EEOC. Since his claims of inadequate access to
acting out of title opportunities and unfairly adverse comments on his 2015 performance
evaluation were the only alleged bad acts to have occurred after he filed his first EEOC

complaint, the court only examines these claims against Title VII's retaliation provision. 42
U.S.C. § 2000e-3(a).

Even resolving disputes of fact in favor of Wilson, as required on a

summary judgment motion, he has not presented sufficient evidence to survive summary
judgment on his retaliation claim.

Title VII's anti-retaliation provision was enacted to "prevent an employer from
interfering [through retaliation] with an employee's efforts to secure or advance enforcement of
the Act's basic guarantees." Burlington N. & Santa Fe Rv. Co. v. White. 540 U.S. 53, 63 (2006).

To survive summary judgment on his retaliation claim, Wilson must offer evidence creating a

conflict of fact as to three elements: (1) that he engaged in protected activity; (2) that his
employer took materially adverse action against him; and (3) that there was a causal link

26

between these two events. Bover-Liberto v. Fontainebleau Corp.. 786 F.3d 264, 281 (4th Cir.
2015) (en bancV Protected activity includes activity which opposes any practice made unlawful
under Title VIL DeMasters v. Carilion Clinic. 796 F.3d 409, 416 (4th Cir. 2015). The Fourth
Circuit gives a generous interpretation to alleged opposition conduct.

Thus, "[w]hen an

employee communicates to her employer a belief that the employer has engaged in ... a form of
employment discrimination, that communication virtually always constitutes the employee's
opposition to the activity." DeMasters. 796 F.3d at 420 (quoting Crawford v. Metro Gov't of
Nashville and Davidson Ctv.. 555 U.S. 271, 281-82 (2009) (Alito, J., concurring)).

For the first element, it is undisputed that Wilson engaged in protected activity. The

filing of an EEOC charge of discrimination or a lawsuit are quintessentially protected activity.
See 42 U.S.C. § 2000e-3; Dowe v. Total Action Against Povertv in Roanoke Vallev. 145 F.3d

653, 656 (4th Cir. 1998); Harrison v. S.C. Dep't of Mental Health. 641 F. App'x 202, 207 (4th

Cir. 2015) ("[TJhere is no question that [by bringing a lawsuit] for failure to promote and pay
discrimination based on race, the plaintiffs engaged in exactly the kind of activity that Title VII
protects against a retaliatory response.").
But Wilson's evidence cannot satisfy the second or third elements of retaliation claims.

In the context of a retaliation claim, the standard for a materially adverse action is lower than that

for a Title VII or ADEA disparate treatment claim: the action must only have been of the type
that would have "dissuaded a reasonable worker from making or supporting a charge of
discrimination." White. 548 U.S. at 68; see also Emami v. Bolden. 241 F. Supp. 3d 673, 684-85
(E.D. Va. 2017) (observing that the "materially adverse action" standard for a retaliation claim is

broader than the "adverse employment action" standard in a claim for disparate treatment).

27

Notwithstanding the more generous standard for a materially adverse action, a reprimand,
without some collateral consequence, carmot be an adequate basis for a retaliation claim. "A
negative performance review, alone ... does not constitute a materially adverse action." Emami.

241 F. Supp. 3d at 685. As discussed above, Wilson has failed to offer evidence suggesting he

suffered some loss because of the allegedly negative comment he received in his 2015
performance evaluation. The evaluation played no part in either the Department's passing over
him for a merit pay increase or for his low rank on the promotion list.

Stipulations at 21,

177 (ECF No. 63) (Wilson and the City agree "the [merit pay] panel did not consider or review
Wilson's—or anyone else's—2015 performance evaluation."); Fire Promotional Policy (ECF
No. 53-3) (no consideration of annual performance evaluations in FPP).

Like a reprimand

without collateral consequences, such a negative comment without an effect on pay or promotion
is not a materially adverse action.

Similarly, because he has not explained how being given

marginally fewer opportunities to act out of title than some of his colleagues impacted his

potential for promotion, being denied opportunities to act out of title is more akin to the
annoyances "all employees experience" than to an act which would "dissuade[] a reasonable
worker from making or supporting a charge of discrimination." S^ White. 548 U.S. at 68.
Because he has not offered any evidence from which a reasonable juror could conclude Wilson

was subject to actions by the Department that would have dissuaded a reasonable employee from
lodging a complaint of discrimination, his retaliation claim fails to meet the second element.

Finally, Wilson's retaliation claim decisively fails on the third element.

He has not

produced any evidence from which jurors could conclude the first two elements were causally
connected. The City has offered non-retaliatory explanations for all of the actions Wilson has

identified. Ackiss Aff. at 12 (ECF No. 53-6) ("Despite Wilson's protestations that the comments

28

were negative and that they led to a drop in his overall performance rating, they appeared to be

extremely fair and honest."); Hoag Aff. at 5 (ECF No. 53-11) (long term acting out of title
opportunities only given to firefighters ranked top on the promotion list); Wilson Dep. at 123124 (ECF No. 53-7) (wide variation to access to opportunities to act out of title due to officers'

schedules of leave, training, and sickness—and such variation not accounted for in spreadsheet

showing total number of acting out opportunities).

A negative comment cannot have been

retaliatory if it was true, and Wilson offers nothing to suggest the non-retaliatory explanation
was pretextual, such as evidence that similarly-situated firefighters who engaged in similar
behavior were not subsequently criticized in their evaluations. Also, the City it has explained
that the number acting out of title opportunities varies widely from station to station and shift to

shift. Wilson also fails to offer evidence that this reason is pretextual.
Because Wilson has not offered evidence that the City's allegedly retaliatory actions were
not materially adverse to him or driven by a desire to retaliate against him for making use of
EEO adjudication procedures, Wilson's retaliation claims cannot survive summary judgment.
IV.

CONCLUSION

For the foregoing reasons, the City's Motion for Summary Judgment (ECF NO. 52) is

GRANTED, and the Clerk shall enter judgment in favor of the Defendant City of Chesapeake on
all three Complaints in the consolidated case.
M

Douglas E. Miller
United States Magistrate Judge
DOUGLAS E. MILLER

UNITED STATES MAGISTRATE JUDGE

February ("^<^2018
Norfolk, Virginia

29