Florida Court Affirms No Gender Discrimination in Chief’s Promotion, But Retaliation Claim Survives

Florida’s 5th Circuit Court of Appeals has rejected the claims of a female division chief that she was discriminated against when she was not selected as fire chief for Marion County Fire Rescue. However, the appeals court reversed the trial court on her retaliation claim.

Chief Shari Hall filed suit after she was passed over in 2015 for fire chief in favor of Paul Nevels. The suit alleged gender discrimination, and was premised at least in part upon the comments of former Marion County Fire Chief Stuart McElhaney that “she would be the next Marion County Fire Rescue Chief.”

After Chief Hall was passed over for a second promotion, this time to deputy chief, she filed an amended complaint adding a count of retaliation for her having complained about gender discrimination with regard to the fire chief’s promotional process.

The trial court granted the county’s motion for summary judgment, concluding Chief Hall failed to establish direct or circumstantial evidence of discrimination. On appeal the 5th Circuit agreed with the trial court on Chief Hall’s discrimination claim. However, the court acknowledged the trial court made a mistake in ruling on Chief Hall’s retaliation claims, and remanded the case back for further consideration.

In the courts own words:

  • Appellant asserts that approximately two years prior to his retirement, Chief McElhaney promised her that “she would be the next Marion County Fire Rescue Chief.”
  • Second, she claims Chief McElhaney told her two years before he left that “he was starting to hear some grumblings from the commissioners about having a female fire chief.”
  • “[R]emarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination.”
  • In fact, the trial court noted in the summary judgment order that there was “no record evidence that former Fire Chief Stuart McElhaney or the county commissioners had any involvement in the appointment decision or any influence on Mr. Bouyounes’ decision.”
  • Thus, Appellant did not offer direct evidence of gender discrimination to avoid entry of summary judgment.
  • Appellant asserted that her qualifications more closely fit the county’s description of whom it hoped to hire as fire chief, specifically with regard to seeking applicants with a bachelor’s or master’s degree.
  • Appellant had an associate of arts degree and was pursuing, but had not attained, a bachelor’s degree.
  • Nevels had graduated from high school but had not pursued a college degree.
  • Several other applicants who did not become finalists did have master’s degrees, while others had bachelor’s degrees.
  • “An employer’s violation of its own normal hiring procedure may be evidence of pretext. This is true when an employer disregards all but one of the factors and qualifications generally taken into consideration and relies solely on a factor which is designed to create ‘leeway’ for the promotion of people of a certain race.”
  • However, since neither Appellant nor Nevels had a bachelor’s degree, disregarding the educational criteria equally as to both finalists did not prove unlawful discrimination.
  • Thus, choosing Nevels, who had less formal education than Appellant, did not provide circumstantial evidence that the county administrator provided pretextual reasons for the hiring decision.
  • Appellant further asserted that she was generally more qualified than Nevels for the position.
  • “When challenging a promotion decision on the basis of qualifications, the employee must show that ‘disparities between the successful applicant’s and her own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.
  • An employer’s decision regarding whom to hire or promote does not need to be correct, but it cannot be based on unlawful discrimination.
  • “The relevant inquiry . . . is not to judge which employee was more qualified, but to determine whether any disparity between [the employees’] managerial qualifications is so great that a reasonable fact-finder could infer that [the employer] did not believe [the successful applicant] to be better qualified.”
  • Here, there is no dispute that both Appellant and Nevels were well-qualified for the position, and there was no record evidence that Appellant was vastly more qualified than Nevels.

Here is a copy of the decision: Hall v Marion County

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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