Employment – Fairfax County prevails on firefighter’s employment claims

Where a woman who was not selected for fire chief argued the non-selection was both discriminatory and retaliatory, the county prevailed on these claims. The firefighter failed to show the county’s non-discriminatory and non-retaliatory reason for her non-selection was pretextual.

Background

Kathleen Stanley McCaffery sued Fairfax County, asserting claims arising out of her employment relationship. There are three counts remaining in the operative complaint, all asserted under Title VII of the Civil Rights Act of 1964: (1) retaliatory hostile work environment; (2) denial of promotion based on sex and (3) retaliatory denial of promotion. Fairfax County has filed a motion for summary judgment.

Hostile work environment

There is a genuine dispute of material fact as to whether plaintiff was subjected to a retaliatory hostile work environment. Specifically, plaintiff has cited record evidence indicating that, approximately a week after she submitted her resignation letter from the Women’s Program Officer role, she was told by the Director of Department of Human Resources that she thought it best that Plaintiff finish her career outside the Fire and Rescue Department, or FRD.

After the County had two press conferences publicly disputing her claims, plaintiff was given the option of (1) an entry-level post at the 9-1-1 dispatch center or (2) an as-yet-undefined, low-status role with the County’s Office of Emergency Management. Plaintiff was informed that she would be relieved of her rank, office and car.
Plaintiff was informed that, if she refused both of these assignments, she would still no longer serve as a Battalion Chief but would instead assist assorted FRD personnel with random projects. Plaintiff was given one week to inform the County of her decision. Moreover, plaintiff has cited record evidence of a series of smaller actions that, in combination with the more severe threat of demotion, a jury could find sufficiently pervasive to support her claim.

Denial of promotion

Defendant has met its burden of articulating a legitimate, nondiscriminatory or nonretaliatory reason for plaintiff’s non-selection; namely, that it had a good faith belief that John Butler was better qualified due to his job performance and experience.

Specifically, the undisputed facts show that (1) defendant hired an outside firm to lead the recruitment and selection process for the vacancy; (2) despite plaintiff’s interviewer from the firm telling her that he would forward her resume for consideration for a final interview, the firm ultimately did not select plaintiff to advance to even an intermediate panel interview and (3) Butler, who was at the time the Fire Chief of Howard County, Maryland’s Fire and Rescue Department and who was ultimately selected for the position, was chosen from among the candidates selected for advancement by the firm.
Plaintiff cites no record evidence, beyond her own conclusory opinion, that she was at least as qualified or more qualified than Butler. And plaintiff’s opinion is insufficient at summary judgment. Indeed, as plaintiff’s deposition testimony demonstrates, when asked, plaintiff did not affirmatively state that she was more qualified than Butler—who was ultimately selected—and only contended that she was more qualified than Merrell (a woman) who was also referred for an interview over plaintiff.

Instead, plaintiff claims she was discriminated and retaliated against in connection with the Fire Chief hiring process because she was not given the opportunity to compete in the final round of interviews who was selected to participate. As a preliminary matter, plaintiff’s theory of recovery based on a lack of opportunity to compete was not raised in the instant or any of the three prior complaints and is, thus, inappropriate to consider for the first time at this stage.

Moreover, in support of her theory, plaintiff argues only that “a plaintiff may claim an injury in fact from the purported denial of the ability to compete on an equal footing against other candidates for a job,” and that “courts do not inquire into the plaintiff’s qualifications (or lack thereof) when assessing standing.” But whether a plaintiff has standing is a separate inquiry from whether a plaintiff has met her burden at summary judgment regarding pretext.

Additionally any inference of sex discrimination is undermined by: (i) the fact that plaintiff fails to allege any sex-based bias on behalf of the third-party selection firm and (ii) the fact that the third-party selection firm did refer Merrell—a woman—for an interview. Furthermore, to the extent plaintiff’s inability to compete theory is based on retaliation, any inference is undermined by the fact that the third-party selection firm made the referrals for the interview and there is no evidence on this summary judgment record that the third-party selection firm had any knowledge of plaintiff’s protected activities.
Defendant’s motion for summary judgment granted in part, denied in part.

McCaffrey v. Fairfax County, Case No. 1:23-cv-965, May 14, 2026. EDVA at Alexandria (Alston). VLW 026-3-217. 24 pp.

Full-Text Opinion
VLW 026-3-217