United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF
a race discrimination, comparative qualifications employment
case. Roderick Jolivette, a black male, applied for the fire
chief position in Americus, Georgia. Americus hired Roger
Bivins, a white male, for the position. Jolivette claims that
his qualifications were substantially superior to those of
Bivins, and therefore, Americus's decision not to hire
him must have been because of his race or in retaliation for
his past discrimination suits against his previous employer.
Americus responds that after considering all of the
qualifications of Jolivette and Bivins, including their
interviews, it determined that Bivins was the most qualified
for the position. Because Jolivette's qualifications are
not sufficiently superior to Bivins's such that it is
obvious Jolivette was better qualified for the position and
because Jolivette pointed to no other evidence that
Americus's decision was motivated by race or unlawful
retaliation, Americus is entitled to summary judgment on
Jolivette's Title VII claims. Accordingly, Americus's
motion for summary judgment (ECF No. 13) is granted.
judgment may be granted only “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). In determining whether a genuine
dispute of material fact exists to defeat a motion
for summary judgment, the evidence is viewed in the light
most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A fact is material if it
is relevant or necessary to the outcome of the suit.
Id. at 248. A factual dispute is genuine if
the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
in the light most favorable to Jolivette, the record reveals
the following facts:
February 2017, Americus posted an external job posting for
the position of fire chief. The job posting stated that the
position required a bachelor's degree in fire science,
public administration, or a closely related field, and that a
master's degree was preferred. Def.'s Mot. for Summ.
J. Ex. A, Job Posting, ECF No. 13-3. City Manager Steve
Kennedy had the authority to hire the new fire chief. Kennedy
Aff. ¶ 6, ECF No. 13-5.
candidates applied for the position. Jones Aff. ¶ 7, ECF
No. 13-7. 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. Jolivette
Résumé 1, ECF No. 20-12. Bivins does not have a
bachelor's degree. Bivins Résumé 1, ECF No.
20-11. Jolivette also holds numerous specialized training
certificates, many of which Bivins did not have.
Compare Jolivette Résumé 1
with Bivins Résumé 1 (demonstrating
Jolivette's additional “specialized
training”). 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 Résumé 1; Bivins Dep.
68:3-9, ECF No. 20-6. Jolivette also has four NPQ Fire
Officer certifications to Bivins's two and three NPQ Fire
Instructor certifications to Bivins's one. Jolivette
Résumé 1; Bivins Dep. 68:16-69:3. Additionally,
unlike Bivins, Jolivette is a certified peace officer, CPR
instructor, Georgia fire inspector, arson investigator, and
deputized local fire marshal. Jolivette Résumé
1; Bivins Dep. 69:11-22 (admitting lack of these
qualifications). Unlike Bivins, Jolivette is also a member of
several professional firefighting organizations, serves on
several community boards, and has received various civic
awards. Jolivette Résumé 1-2.
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. Id. at 2. Bivins has never served as a fire
chief. Bivins Dep. 71:4-11. Americus does not dispute that on
paper Jolivette demonstrated impressive credentials. Jones
Dep. 87:17-22, ECF No. 20-4. It also acknowledges that it
initially placed Bivins's application into the
“does not meet minimum qualifications” category.
Id. at 59:17-21. Nonetheless, Americus still
considered Bivins's application because of the
“totality” of his skills, experience, and
education, as permitted by the job description. Id.
The Interview Process
Americus hired employees for such key positions as fire chief
solely based upon a written résumé, then
Jolivette likely would have gotten the job. But Americus,
like many (perhaps most) employers, placed great weight on
applicant interviews, as demonstrated by the extensive
interview process used here. Americus conducted three rounds
of interviews. The first interview panel consisted of
Kennedy, Americus human resources director Dee Jones, and
departing fire chief Allen Erkhardt. Jones Aff. ¶ 8. The
second panel included city department heads, fire captains,
fire engineers, and fire battalion chiefs. Id.
¶ 10. Four candidates moved forward after the second
interview. Id. The remaining candidates then
interviewed with a panel of fire chiefs from other local
agencies. Id. ¶ 11.
collected the comments of twenty-eight of Jolivette's
interviewers. See generally Def.'s Reply in
Supp. of Mot. for Summ. J. Ex. C, Interviewer Comments &
Preferences, ECF No. 22-3. By the Court's count, nobody
ranked Jolivette first, two interviewers ranked Jolivette
second, and the remaining twenty-six interviewers ranked
Jolivette third or fourth. By contrast, nineteen interviewers
ranked Bivins as their top choice, two ranked him tied for
first, two ranked him second, and four ranked him third.
Another interviewer felt Bivins was the best choice if
Kennedy and Jones wished to promote from within. See
Email from J. Roth to D. Jones (Apr. 12, 2017), ECF No. 22-3
at 2. The interviewers far preferred Bivins to Jolivette.
Thus, if Americus were to make its selection decision solely
on the interview process, Bivins would be the clear choice.
he left Albany, Jolivette sued the Albany fire department
twice for race discrimination and retaliation. See
Pl.'s Resp. to Def.'s Interrog. No. 9, ECF No. 13-6
(describing lawsuits in 2003 and 2009). Three of the
twenty-eight interviewers expressed concern about the
circumstances of Jolivette's departure from the Albany
fire department. See Email from H. Williams to D.
Jones (Apr. 10, 2017), ECF No. 22-3 at 7 (noting
“several issues in [Jolivette's] past”);
Email from H. Williams (on behalf of A. Erkhart) to D. Jones
(Apr. 14, 2017), ECF No. 22-3 at 32 (explaining that Erkhart
would have “liked to have known the details of the
incidents in Albany and why [Jolivette] left”); Email
from S. Morris to D. Jones (Apr. 9, 2017), ECF No. 22-3 at 10
(explaining that Jolivette “has a few negative issues
in his past career path that could serve to project very
negatively on the overall image of the City of Americus and
The Americus Fire Department. These issues can easily be
found through a simple Google search”). Jolivette claims
the interviewers “grilled” him on the topic of
his past lawsuits. Jolivette Dep. 89:8-10, ECF No. 20-7.
Jolivette felt the interviewers focused on the Albany
lawsuits rather ...