Micheall Lyons v. CITY OF ALEXANDRIA, A municipal corporation organized under the laws of the…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1656
MICHEALL LYONS,
Plaintiff – Appellant,
v.
CITY OF ALEXANDRIA, A municipal corporation organized under the laws of the
Commonwealth of Virginia,
Defendant – Appellee.
------------------------------
UNITED STATES OF AMERICA,
Amicus Curiae.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:19-cv-00576-LO-MSN)
Argued: October 28, 2021 Decided: May 31, 2022
Amended: June 1, 2022
Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion in which Judge
Wilkinson and Judge Wynn joined.

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ARGUED: Stephen B. Pershing, PERSHING LAW PLLC, Washington, D.C., for
Appellant. Ronda Brown Esaw, GREENBERG TRAURIG, LLP, McLean, Virginia, for
Appellee. Anna Marks Baldwin, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Amicus Curiae. ON BRIEF: Laura Metcoff Klaus, Washington,
D.C., Michelle D. Gambino, Michael A. Hass, GREENBERG TRAURIG, LLP, McLean,
Virginia, for Appellee. Eric S. Dreiband, Assistant Attorney General, Alexander V.
Maugeri, Deputy Assistant Attorney General, Tovah R. Calderon, Civil Rights Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sharon Fast
Gustafson, General Counsel, Jennifer S. Goldstein, Associate General Counsel, Sydney
A.R. Foster, Assistant General Counsel, Anne W. King, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.

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RICHARDSON, Circuit Judge:
Micheall Lyons alleges that his employer, the Alexandria Fire Department,
intentionally discriminated against him because of his race in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. While already serving as a firefighter,
Lyons sought to become a paramedic. With the Fire Department’s help, he completed an
educational process and eventually passed the two required examinations. This made him
eligible for the required one-year paramedic internship. But five months passed before the
Fire Department promoted him to the internship. During that wait, an employee of the Fire
Department told Lyons that firefighters were usually placed in the paramedic internship
program on a “first come, first serve[d]” basis after becoming eligible.
After Lyons saw white colleagues on other Fire Department shifts receive
internships before him, he believed that the Fire Department was violating its placement
practice and delaying his promotion because he is Black. But the Fire Department explains
that the first come, first served practice is shift-specific. Lyons offers no evidence to prove
that the Fire Department’s explanation—which is supported by its practice—is pretextual.
So we affirm the district court’s grant of summary judgment to the Fire Department.
I. Background
Micheall Lyons is a firefighter for the City of Alexandria’s Fire Department.1 In
August 2016, Lyons began the lengthy process of becoming a paramedic. Paramedic
applicants must meet the certification requirements of both the Committee on Accreditation
1 Though the City is the actual defendant here, we refer to the Fire Department for
ease of understanding.

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of EMS Professionals and the National Registry of Emergency Medical Technicians
(“National Registry”).
Paramedic training begins with several classes and hundreds of hours of supervised
on-the-job training. Then the applicant must pass the National Registry examination,
which has separate practical and written components. Once an applicant passes this
examination, Virginia’s Office of Emergency Medical Services issues a State Paramedic
Certification. With this certification, an applicant must then complete a one-year
Advanced Life Support Internship Program. Only then is an applicant a full-fledged
paramedic.
Lyons began the paramedic certification process with the Fire Department’s
support. The Fire Department provided Lyons with the required educational courses, and
it transferred him to a medic unit so that he could complete the required on-the-job training.
Once Lyons completed his coursework and training, he also passed the practical component
of the National Registry examination. But the written component of the examination
proved harder. After failing that test three times, the National Registry required him to
complete remedial training before he could take the test again. Undeterred and determined
to pass the test, Lyons paid for the required remedial training out of pocket. Even so, he
still failed the examination on his fourth and fifth attempts. He finally passed the
examination on his sixth attempt in August 2017.
Later that month, he received his State Paramedic Certification. That made him
eligible to start the Internship Program. But eligibility did not translate to immediate

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placement. It would be five months before Lyons received a spot. During this delay, he
went without the increased pay and rank that came with being a paramedic intern.
Lyons alleges that Fire Department higher-ups told him that the Department used a
first come, first served practice to place interns. And, according to Lyons, that practice
was not followed in his case, leading to the placement of three white interns ahead of him.
If white applicants were allowed to skip over Lyons in line for the internship, that might
support an inference of discrimination as white applicants would be treated better than
Lyons.
The Fire Department disagrees with those allegations. According to the Fire
Department, Chief Lawrence Schultz, its Assistant Chief of Operations, had the discretion
to place interns as he saw fit. But Chief Schultz almost always followed a practice of
placing interns in the first internship spot available on that applicant’s shift, and the Fire
Department provided evidence that Chief Shultz followed that typical practice when
placing Lyons. The Fire Department has three shifts—A, B, and C. Thus, an applicant on
shift A will not be placed into an internship until a spot on shift A becomes available.
Interns are assigned to a supervising field training officer who oversees a single intern, so
placements are dependent on, and necessarily limited by, the availability of field training
officers on each shift.
Lyons responds by claiming this explanation is false. In other words, he claims the
Fire Department does not have a shift-specific practice and instead typically assigns interns
to the first available field training officer regardless of shift.

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The district court found that Lyons failed to create a genuine question of material
fact that the Fire Department does not have a shift-specific placement practice. Thus, the
court granted summary judgment to the Fire Department on his discrimination claim.
II. Discussion
A. Summary Judgment
Summary judgment is proper only when “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). “A dispute is genuine if a reasonable jury could return a verdict for the nonmoving
party, and a fact is material if it might affect the outcome of the suit under the governing
law.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018)
(cleaned up). “[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The district court may properly rely on the nonmoving party’s own deposition
testimony, affidavits, or declarations to reject summary judgment. Gray v. Spillman, 925
F.2d 90, 95 (4th Cir. 1991). But “a plaintiff’s own assertions of discrimination in and of
themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory
reasons for an adverse employment action.” Williams v. Cerberonics, Inc., 871 F.2d 452,
456 (4th Cir. 1989); see Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th
Cir. 2020) (“[C]onclusory allegations or denials, without more, are insufficient to preclude
granting the summary judgment motion.”).

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B. Analysis
Lyons alleges that the Fire Department intentionally discriminated against him
based on his race in violation of Title VII.2 Lyons puts forward no direct evidence of
discrimination, arguing instead that race-based discrimination may be inferred from the
assignment of later-certified white firefighters to internships before him. Without direct
evidence of intentional discrimination, a plaintiff may use the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to develop an inferential case
of discriminatory intent. Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019).
The McDonnell Douglas framework has three steps. First, the plaintiff must establish a
prima facie case of racial discrimination. See McDonnell Douglas, 411 U.S. at 802. Then
the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for
the adverse employment decision. Id. Finally, the burden shifts back to the plaintiff to
show that the employer’s proffered legitimate, nondiscriminatory reason is a pretext. Id.
at 804. “Although intermediate evidentiary burdens shift back and forth under this
framework, the ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (cleaned up).
2 “It shall be an unlawful employment practice for an employer—(1) to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-
2(a)(1).

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A plaintiff proves a prima facie case of discrimination for a delay in promotion by
proving that (1) he is a member of a protected group; (2) he applied for the position at
issue; (3) he was qualified for the position; and (4) the delay occurred under circumstances
giving rise to an inference of unlawful discrimination. See Brown v. McLean, 159 F.3d
898, 902 (4th Cir. 1998). Lyons meets the first three requirements of the prima facie case.
He is an African American, he applied for the Internship Program, and he was qualified
once he became state certified.
To establish the fourth element of his prima facia case, an inference of unlawful
discrimination, Lyons claims that the Fire Department had a practice of placing applicants
with the first available field training officer regardless of shift, but the Department placed
three later-certified white firefighters into the program ahead of him. This claim, if true,
might support such an inference. The Fire Department responds by disputing the premise,
putting forward evidence that its general practice was to place interns on a first-come, first-
served basis by shift. And if the Fire Department is correct, then the white firefighters were
assigned in accordance with the practice and no reasonable inference of discrimination
exists.3
3 When an employer attacks the essential factual premise of the employee’s
discrimination claim, the “same evidence is germane” to both the prima facie case and
pretext inquiries. Smith v. City of Toledo, 13 F.4th 508, 516 (6th Cir. 2021) (quoting
McCarthy v. Ameritech Publ’g, Inc., 763 F.3d 469, 482 (6th Cir. 2014)). And there is “no
impermeable barrier that prevents the employer’s use of such evidence at different stages
of the McDonnell Douglas framework.” See Warch v. Ohio Cas. Ins., 435 F.3d 510, 516
(4th Cir. 2006). On these facts, it does not matter if you consider the Department’s rebuttal
evidence to attack the prima facia case or if you consider the Department to have put
forward evidence of a legitimate, nondiscriminatory reason that Lyons cannot show is
(Continued)

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But at the summary judgment stage, we are not deciding who is right. Instead, we
are examining whether Lyons has raised a genuine question of whether a non-shift-specific
assignment practice existed. Start with the evidence Lyons relies on to support a general
first-come, first-served assignment practice. Lyons testified that both Captain Lisa Simba,
the Fire Department’s Emergency Medical Services Training Officer, and Chief Byron
Andrews, the Fire Department’s Deputy Chief of Emergency Medical Services, told him
that the Fire Department placed interns on a “first come, first serve[d]” basis. J.A. 304–05,
325.4 That statement is consistent with either a shift-specific practice or a practice of
assigning without regard to shift. So Lyons tries to complete the circle by testifying that
he understood those statements to mean that the intern placement practice was not shift-
specific.
But Lyons’ alleged understanding of Captain Simba’s statement is not enough to
raise a material issue of fact given the Fire Department’s evidence. See Williams, 871 F.2d
pretextual (i.e., a shift-specific first come, first served practice). See Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 298 (4th Cir. 2004) (en banc), overruled in
part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
4 Because Lyons failed to depose Captain Simba or Chief Andrews, he is left to rely
on nothing other than his own testimony about their statements. “[H]earsay evidence,
which is inadmissible at trial, cannot be considered on a motion for summary judgment.”
Md. Highways Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991). But
a statement is not hearsay if “[t]he statement is offered against an opposing party
and . . . was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D). “The corporation’s agent
need not have authority to make the statement at issue, but rather the subject of the
statement must relate to the employee’s area of authority.” United States v. Brothers
Constr. Co. of Ohio, 219 F.3d 300, 311 (4th Cir. 2000). Accordingly, we assume here that
Captain Simba’s and Chief Andrews’ statements are admissible.

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at 456; Wai Man Tom, 980 F.3d at 1037. The Fire Department’s evidence supports its
claim that it places interns with training officers on a first-come, first-served basis within
each shift. See Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 947–48 (4th Cir.
1995) (relying on affidavit attestations to support summary judgment). First, the Fire
Department leadership submitted declarations that a shift-specific first-come, first-served
practice existed. Chief Schultz stated that an internship applicant is generally placed on a
waiting list behind others that received a state certification before him, but “because a
training officer serves on one of three shifts (A, B, or C) there are separate wait lists for
prospective interns on each shift.” J.A. 100. And Chief Andrews agreed that the Fire
Department followed that general practice. They also explained that training officers were
unevenly distributed among the shifts, so internship applicants on certain shifts had to wait
longer for internship placement than their colleagues on other shifts.
These declarations are supported by the evidence of assignment here. When Lyons
first applied for the internship, he was a member of shift B. But in early November 2017,
Lyons requested a voluntary transfer to shift A, and the Fire Department granted that
request, making it effective December 2, 2017. Entering the internship was a year-long
commitment. So assignment by shift would be forward looking: What shift would the
intern be on over the next year? Before Lyons’ transfer request, he was not skipped over
for internship placement in favor of an applicant who was certified after him. After the
transfer, Lyons was placed first on the A-shift waitlist, and it is undisputed that Lyons
received the first available internship on shift A. All this supports the Department’s
declarations that it followed a shift-specific first-come, first-served practice.

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Lyons seeks to undermine this conclusion by pointing to assignments that he claims
were not done on a first-come, first-served basis based on shift. Of the twenty-two
applicants from September 2016 to May 2018, Lyons points to three white firefighters
whose assignments he alleges deviated from a shift-specific placement practice. None hold
up.
Lyons first points to Joseph Konczal and Jodi Renner. Konczal qualified later than
Lyons and was placed earlier than Lyons. But Konczal was on shift C and took an
internship in shift C, while Lyons was on shift B. So Lyons’ evidence that Konczal
received an internship before him not only fails to undermine the shift-specific practice, it
exemplifies it. Lyons’ use of Renner as a comparator suffers from a similar problem.
Renner was on shift B with Lyons in November 2017. But she received her internship
placement on shift B in January 2018 after Lyons had transferred to shift A in December.
Because Lyons was on a different shift than Renner when she received her internship, she
likewise does not undermine the shift-specific practice.
Lyons’ third alleged comparator is Ryan Kilner who also received his certification
after Lyons. Before Lyons requested a transfer from shift B, he and Kilner worked that
shift together. But only after Lyons requested the transfer did Kilner receive a shift-B
internship. So that too seems consistent with the shift-specific practice. But Kilner’s
assignment was awarded in the gap between Lyons’ requested transfer and its effective
date. So, Lyons argues, both he and Kilner were technically on the same shift when Kilner
received the assignment, although Lyons was slated to transfer three weeks later. Lyons

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thus argues that the Fire Department violated its shift-specific practice by skipping over
him because of his impending transfer.
Chief Schultz explained that it would have been “impossible” for the Fire
Department to honor Lyons’ transfer request while also placing him in a shift B internship
because “had he taken the spot on the B shift, he would have had to immediately leave the
program upon his transfer to A shift a couple weeks later.” J.A. 102–03. So the Fire
Department was left with two possibilities: (1) it could require Lyons to remain on shift B
and take the shift B internship; or (2) it could allow Lyons to transfer to shift A and get the
next available shift A internship. And by the time the internship was given to Kilner, Lyons
had made his preference to transfer to shift A clear, while not communicating anything
about a potential interest in staying on shift B if it meant getting the internship a little bit
earlier. In the end, Kilner’s assignment as a shift-B intern before Lyons’ transfer is only
evidence of the Fire Department’s attempt to comply with Lyons’ wish to transfer to shift
A; the most recent indication of what he wanted.
Lyons argues that he was not informed that transferring to shift A would delay his
internship placement, and if he had known, he would not have sought the transfer (i.e., he
would have chosen to remain on shift B to get the internship earlier). But the pertinent
question is whether Lyons offers any evidence that suggests the Fire Department granted
his transfer request as a pretext to delay his internship placement. He does not. Nor does
he offer any evidence that the Fire Department used the pending transfer request as a
pretext to favor his white colleague, Kilner. The Fire Department had no reason to know

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that Lyons misunderstood that its first come, first served practice was shift-specific, and
Lyons could have asked about the consequences of the transfer himself.
Finally, Lyons suggests that other rationales offered by the Fire Department for his
five-month wait undermine its claim that it followed a shift-specific assignment practice.
A plaintiff can establish pretext by “show[ing] that an employer’s proffered
nondiscriminatory reasons for the [delayed promotion] are inconsistent over time.”
Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 652 (4th Cir. 2021) (quoting Haynes
v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019)). But a finding of pretext is
appropriate “only where the other evidence of discrimination is sufficiently strong to
ensure that the employer is held liable for unlawful discrimination and not merely for
inconsistent statements.” See Price v. Thompson, 380 F.3d 209, 217 n.5 (4th Cir. 2004)
(holding that the employer’s four nondiscriminatory justifications were not inconsistent
and did not establish pretext), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 570 U.S. 338, 360 (2013). Employers may have multiple, legitimate reasons for
their actions. See Tidwell v. Cater Prods., 135 F.3d 1422, 1428 (11th Cir. 1998) (“[T]he
existence of a possible additional non-discriminatory basis for [an employee's] termination
does not, however, prove pretext.”). And an employer’s multiple reasons do not create the
inference of pretext where “there has been no retraction of any of its reasons . . . nor are
any of its reasons inconsistent or conflicting.” Johnson v. Nordstrom, Inc., 260 F.3d 727,
733–34 (7th Cir. 2001).
To begin with, the Fire Department attributed Lyons’ placement delay to a “waiting
list” in August 2017, J.A. 330, which is the practice of assigning interns based on a shift-

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specific first come, first served waiting list that it has maintained throughout this litigation.
“This is important because the fact[] that an employer ‘never changed its story’ and that its
‘explanation has been consistent from the moment’ it took the adverse action tend[s] to
support its argument that it did not act pretextually.” Dawson v. Wash. Gas Light Co., No.
19-2127, 2021 WL 2935326, at *5 (4th Cir. July 13, 2021) (unpublished) (quoting Holland
v. Wash. Homes, Inc., 487 F.3d 208, 217 n.7 (4th Cir. 2007)).
Still Lyons argues that the Fire Department’s justifications have shifted. In an
October 2017 email, Chief Schultz noted that Lyons would not be considered for an
internship until all other July students were placed ahead of him. And Lyons argues that
Chief Schultz’s email reflects a shifting justification for his delayed placement. But this
email fails to undermine the shift-specific placement practice. Chief Schultz had final
decision-making authority over internship placements, and although he typically followed
the shift-specific first-come, first-served practice, he had the power to sometimes make
exceptions. This email reflects his belief that Lyons needed to wait behind others in the
July class because “[f]urther investment of time and money must be based on a reasonable
expectation of success.” J.A. 336. And based on Lyons’ repeated failure to pass the written
exam, Chief Schultz was uncertain that Lyons would succeed.
But nothing about Chief Schultz’s email suggests that the Fire Department’s shift-
specific placement rationale is false or pretextual. See Westmoreland v. TWC Admin. LLC,
924 F.3d 718, 726 (4th Cir. 2019) (noting that the plaintiff bears the burden to prove
pretext). And the record here does not identify the members of the July 2017 class, so we
have no way to know whether the Fire Department followed through on Chief Schultz’s

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email. At most, Chief Schultz’s email simply shows that a separate reason could also have
explained a delay in placing Lyons in an internship. In addition to waiting behind those on
his shift certified before him, he might also have to wait behind those on his shift certified
in the July 2017 class. Those reasons are not inconsistent with one another, and Lyons puts
forth no evidence to suggest that both are not true here. See Price, 380 F.3d at 214–17.
Whether or not Chief Schultz followed through on his email suggesting that Lyons should
wait behind the July 2017 class members, neither outcome would undermine the shift-
specific practice. Rather than prove that the Fire Department’s proffered reasons for the
delay are “inconsistent over time,” Lyons only identifies a possible alternative lawful
rationale. See id.; Tidwell, 135 F.3d at 1428.5
* * *
Title VII serves as an important bulwark against invidious discrimination. But when
the plaintiff fails to produce evidence which creates a genuine dispute of material fact, this
Court must ensure that employers are not punished for implementing lawful and
nondiscriminatory business practices. On the record before us, the evidence only shows
5 Even if Lyons’ delay were attributable to Chief Schultz’s instruction, Chief
Schultz’s email reflects the common-sense notion that a person who passed the
examination on the first attempt has a greater aptitude for the material, and is thus more
likely to succeed in the internship, than a person who took six tries. Title VII permits
employers to consider employee qualifications when deciding who to hire and promote.
See Hux v. City of Newport News, 451 F.3d 311, 317–18 (4th Cir. 2006) (holding that hiring
a candidate with better qualifications is a legitimate, nondiscriminatory justification). And
employers can consider the relative qualifications of each candidate rather than whether
each merely meets the basic requirements for the job. See id. So even if Chief Schultz
delayed Lyons’ internship as a result of his exam performance, that would not be evidence
of racial discrimination.

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that Lyons misunderstood the Fire Department’s internship placement practice. That does
not suffice. Accordingly, the district court’s judgment is
AFFIRMED.

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