Fired Toledo Recruit Claims Instructors Taught Him Wrong Way Because of His Race

A firefighter recruit who failed a final practical exercise involving ventilating a roof with a chainsaw and then failed a retest, is now suing the City of Toledo claiming instructors gave him wrong information so he would be terminated. Major Smith III is accusing the city, Mayor Wade Kapszukiewicz, Toledo Fire Chief Brian Byrd, and retired Fire Chief Luis Santiago of race discrimination.

Smith, who is black, claims he was discriminated against throughout the academy, but it was the final ventilation evolution that led to him being terminated. He alleges instructors improperly trained him on the use of the chain saw, while Caucasian firefighters were properly trained. He also claims his evolution was “far more severe and demanding – to the point of guaranteeing failure – than that required of Caucasian trainees.”

He claims a retest of the ventilation evolution was unfair because it too was more difficult than what was required of Caucasian firefighters, plus evaluators failed to take into account that his chain saw malfunctioned. From the complaint:

  • The City of Toledo Fire & Rescue Department has a history of and has continually since at least 1972 through the present engaged in racial discrimination in its hiring and employment practices.
  • As of July 2010, the City of Toledo Fire & Rescue Department had so failed to satisfy the mandates of the 1974 Consent Decree that the City’s compliance was challenged by Advocates for Basic Legal Equality with the filing of a motion in Federal Court seeking to enforce provisions of a 1995 Order requiring the continuous recruitment program.
  • Despite this history of litigation, the various consent decrees and the ultimate 2010 settlement agreement, racial discrimination in the City of Toledo Fire & Rescue Department’s hiring practices have continued such that the City has not achieved the integration of minorities as mandated in the 1974 Consent Decree.
  • Throughout the course of his employment since December 1, 2017, Plaintiff has been subjected to racial discrimination, retaliation and harassment and has received different treatment than Caucasian employees.
  • Initially, supervising personnel in the City of Toledo Fire & Rescue Department falsely represented that Plaintiff had failed his agility tests and attempted to have his employment terminated when in fact he had one of the highest scores in his class on the subject agility tests.
  • During the course of his training Plaintiff was subjected to almost weekly disparate and/or discriminatory harassment by supervisory personal in that he was disciplined, reprimanded and written up for incidents for which other Caucasian recruits in the same circumstance were not written up in a course of systematic discrimination designed to result in Plaintiff’s inability to successfully complete the training program.
  • Plaintiff was written up for not having his suspenders on his shoulders when under the same circumstance involving at least one other Caucasian recruit it was dealt with as a laughing matter;
  • Plaintiff was disciplined for studying for an upcoming test after having finished his designated duties (e.g., area cleanup, floor sweeping) instead of helping other recruits finish their assigned task;
  • Plaintiff was repeatedly denied tutoring help and other assistance in learning prescribed firefighter skills while Caucasian recruits were provided and allowed the same type of help;
  • Plaintiff was repeatedly given pretextual excuses why additional training assistance was not available when Caucasian recruits were provided the same type of assistance.
  • In furtherance of the City of Toledo’s and the City of Toledo Fire & Rescue Department’s discriminatory scheme against Plaintiff, Plaintiff was intentionally misled and wrongfully instructed by assigned instructors within the City of Toledo Fire & Rescue Department resulting in Plaintiff’s failure of a required ventilation test wherein the recruit/trainee is required to use a chainsaw to cut an opening into a facility.
  • Plaintiff was improperly instructed in the use of a chain saw contrary to the manner in which Caucasian Recruit/Trainees were instructed, which disparate and/or discriminatory treatment led to Plaintiff failing the ventilation test which failure was then used as a basis for his termination.
  • Plaintiff was isolated/separated from other members of his class thereby depriving him of the opportunity to intermingle and learn the skills along with other members of his class needed to successfully complete training as a Firefighter Recruit for the City of Toledo Fire & Rescue Department.
  • Plaintiff’s training/education was manipulated by being told what to do without being provided demonstrations on how to perform required tasks, all the while when demonstrations were provided to Caucasian Recruit/Trainees.
  • During “ventilation testing” Plaintiff was required to complete this task in the air on actual structures while Caucasian Recruit/Trainees were allowed to complete the ventilation test on a simulator, which disparate and/or discriminatory treatment led to Plaintiff failing the test which failure was then used as the basis for his termination.
  • Plaintiff’s failure of the ventilation testing was used as a basis for his termination while Caucasian Recruit/Trainees were allowed to successfully complete Recruit/Trainee training without passing the ventilating test.
  • Plaintiff was required to satisfy ventilation testing requirements far more severe and demanding – to the point of guaranteeing failure – than that required of Caucasian trainees, which disparate and/or discriminatory treatment led to Plaintiff failing the test.
  • On May 31, 2018, Karen Poore, Deputy Chief of Staff for Defendant Kapszukiewicz, informed Alicia Smith, Plaintiff’s mother, by phone that there was gross negligence in the Fire Department’s testing of Recruit Smith and that the Fire Department training staff would provide Plaintiff an opportunity to retest. Ms. Poore apologized for the mistreatment afforded Plaintiff and asked if there was anything that would make a difference in the testing to which Ms. Smith responded with the request that a person of color would accompany Plaintiff, Recruit Smith, in the retesting.
  • Contrary to the Defendants’ joint and/or several assurances of, and agreement to allow, fair, nondiscriminatory treatment in retraining and retesting as detailed above, Plaintiff Smith was again given improper training, and subjected to ventilation testing requirements far in excess of those required of Caucasian Recruit/Trainees.
  • When Plaintiff’s chain saw malfunctioned during testing, the test was not stopped, and contrary to the treatment afforded Caucasian Recruit/Trainees, Plaintiff Smith was required to continue the test with a malfunctioning chainsaw, which disparate and/or discriminatory treatment contributed to Plaintiff failing the test.
  • Plaintiff Smith was required to perform ventilation testing on a roof that Caucasians did not use for testing having characteristics – elevation and slope – that was not required of Caucasian Recruit/Trainees, which disparate and/or discriminatory treatment contributed to Plaintiff failing the test.
  • Plaintiff Smith was required to perform the above ground ventilation testing wearing more and heavier equipment than that required of Caucasian Recruit/Trainees, which disparate and/or discriminatory treatment contributed to Plaintiff Smith failing the test
  • Plaintiff Smith was required to perform a bigger cut in an above ground ventilation test on a facility presenting more extreme conditions than that required of Caucasian Recruit/Trainees, which disparate and/or discriminatory treatment contributed to Plaintiff Smith failing the test.

Here is a copy of the complaint: Smith v Toledo

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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