Eleventh Circuit Denies Chief’s Race Discrimination Claim

The 11th Circuit has denied the appeal of a Georgia fire chief who claims his application to become the fire chief of the City of Americus was rejected on account of his race and because he previously sued his former employer for race discrimination.

Roderick Jolivette, the Fire Chief in Manchester, Georgia and a former Assistant Chief in Albany, Georgia, applied for the fire chief position in Americus in 2017.  After an extensive interview process, Americus hired one of its own battalion chiefs, Roger Bivins, to be the chief. Chief Jolivette filed suit alleging that his qualifications so superior to those of Chief Bivins that the decision not to hire him must have been because of his race or in retaliation for his past discrimination suits against his previous employer. Chief Jolivette is black. Chief Bivens is white.

The disparity between the two candidates was explained by the district court in 2018:

  • Twenty-six candidates applied for the position.
  • Americus selected five candidates to move forward, including Jolivette and Roger Bivins, a white male who was then a battalion chief for the Americus fire department.
  • Jolivette holds associate degrees in fire science technology and in management and supervisory development, a bachelor’s degree in political science, and a master’s degree in public administration.
  • Bivins does not have a bachelor’s degree.
  • Jolivette also holds numerous specialized training certificates, many of which Bivins did not have.
  • Further, Jolivette is a fourth-year National Fire Academy executive fire officer student, while Bivins has only completed a few classes towards the certification.
  • Jolivette also has four NPQ Fire Officer certifications to Bivins’s two and three NPQ Fire Instructor certifications to Bivins’s one.
  • Additionally, unlike Bivins, Jolivette is a certified peace officer, CPR instructor, Georgia fire inspector, arson investigator, and deputized local fire marshal.
  • Unlike Bivins, Jolivette is also a member of several professional firefighting organizations, serves on several community boards, and has received various civic awards.
  • Jolivette also has more experience than Bivins as a fire chief and an assistant chief.
  • Jolivette is currently the fire chief of Manchester, Georgia. He previously served several roles in the Albany, Georgia fire department, including assistant fire chief.
  • Bivins has never served as a fire chief.
  • Americus does not dispute that on paper Jolivette demonstrated impressive credentials.
  • It also acknowledges that it initially placed Bivins’s application into the “does not meet minimum qualifications” category.
  • Nonetheless, Americus still considered Bivins’s application because of the “totality” of his skills, experience, and education, as permitted by the job description.

The trial court then concluded Chief Jolivette’s qualifications, while impressive, were not so overwhelming as to make the city’s decision to promote Chief Bivens conclusive proof of discrimination. Chief Jolivette then appealed to the 11th Circuit who in a ruling handed down last week, affirmed the trial court.

Quoting from the decision:

  • The City presented evidence that it had legitimate, nondiscriminatory reasons for hiring Bivins instead of Jolivette.
  • The City submitted an affidavit from its final decisionmaker, Steve Kennedy, who stated that he hired Bivins based on his “combination of education, training, and experience,” his “overall experience and qualifications,” his “intimate knowledge of the [Americus] Fire Department and its personnel,” his “enthusiasm for the job,” his “performance during his interviews and receipt of higher interview scores” and his “efficiency, positivity, and ambitiousness.”
  • Bivins served the Department for 15 years as a firefighter, engineer, and captain, followed by 10 years as its Battalion Chief.
  • His resume also listed numerous certifications that he had acquired as a fire officer, a fire control instructor, and a safety officer and for emergency training and planning.
  • As Kennedy averred, the interviewers overwhelmingly preferred Bivins.
  • Interviewers consisted of local officials, the outgoing Fire Chief, firefighters, and fire chiefs from other locales.
  • Of the 28 interviewers who submitted opinions by email, 20 ranked Bivins as their choice for Fire Chief, two ranked Bivins as tied for the position, and none ranked Jolivette as their first choice.
  • The interviewers favored Bivins because he was “rooted in Americus,” “his work history was more stable than any other candidate,” “[h]e already ha[d] a pulse on the department” and an “aware[ness] of the current status and . . . needs . . . to move the department forward,” he collaborated with other city agencies, and he had strategic long-term plans for the Department and its employees.
  • The interviewers also commended Bivins for “always striving to better the dept. and the city,” “work[ing] his way up through the Americus Fire Department,” “work[ing] hard to maintain respect and trust,” “tak[ing] the initiative  to seek further education,” and being “passionate about his job . . . .”
  • Kennedy and the interviewers favored Bivins based on his stable employment history with the City, his enthusiasm, and his strategic plans for and intention to remain with the Department.
  • And the interviewers relied on similar subjective factors to give Jolivette a low ranking. Interviewers disfavored Jolivette because of his evasive responses, his shortsighted one-year plan for the City, and his intent to retire in five years.
  • Even the two interviewers who expressed a preference for hiring an African-American candidate ranked Jolivette last due to his demeanor and his responses.
  • Although Jolivette possessed a bachelor’s degree, as required in the job posting, the City policies weighed equally candidates who possessed an “equivalent combination of education, training, and experience.”
  • Dee Jones, the human resources director for the City, testified that Bivins qualified for the position of Fire Chief “because of the[] totality” of his skills, experience, and education, as provided for in the job posting and “our job description.”
  • Jolivette does not dispute that Bivins possessed skills, experience, and abilities that “substitute[d] for a lack of a college degree.”

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 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) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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