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In the September 2003 promotional process, twelve candidates
applied for five Fire Captain openings, and the Department promoted
five men. Every interviewer ranked every successful candidate higher
than Hux, and one interviewer in fact ranked Hux last. In addition,
every successful applicant had at least thirteen years of fire service
experience; Hux had eight. Three of the five, moreover, had served
as Fire Lieutenants for almost twice as long as Hux. The two success-
ful candidates with slightly less experience as Fire Lieutenants both
had more total fire service experience than Hux, had used considera-
bly less leave time, and had more favorable performance evaluations.
Finally, the City contends that Hux did not perform well in her inter-
view, and there were once again concerns about her interpersonal and
leadership skills.
The final promotional process took place in January 2004, and
three men received promotions. As before, all had significantly more
fire service experience than Hux. While two successful candidates
had served as Fire Lieutenants for six months less than Hux, both had
worked at least six more years in fire service, were ranked higher by
every interviewer, had employment evaluations that were equal to or
exceeded Hux’s, and had used less than ten percent of the leave time
she had used. Similarly, while two interviewers did rank the third suc-
cessful candidate below Hux, this candidate had over twenty years of
fire service experience, had served as a Lieutenant for more than three
times as long as Hux, possessed superior evaluations, and had taken
less than half of the leave time that Hux had.
B.
Notwithstanding the foregoing, Hux argues that the City’s conten-
tion that male candidates were more qualified is pretext for unlawful
discrimination. In doing so, however, she would ask this court to miss
the forest for the trees, and disregard the better overall qualifications
of her fellow applicants. In Hux’s view, it is sufficient to compare
herself to those individuals who received promotions on the basis of
the only factor in which she was arguably equal to each one, a factor
which changes with every comparison. This does not satisfy her bur-
den in this case. A plaintiff cannot create a triable issue by selecting
from the many criteria used in the promotions process the one factor
on which he or she may conceivably compare. "By its very terms,
8 HUX v. CITY OF NEWPORT NEWSJump to an indexed page (12 of 12)