Toledo Prevails in Race Discrimination Suit

A race-discrimination suit brought by a firefighter-recruit who washed out of the Toledo Fire Academy in 2018 has been decided in favor of the city. Major Smith III filed the suit claiming that his dismissal from the academy on account of his race.

Smith, who is black, claims he was discriminated against throughout the academy, and that instructors improperly trained him on a critical ventilation evolution, which he subsequently failed causing him to wash out of the academy. He alleged Caucasian firefighters were properly trained, and they were evaluated on a roof that was less demanding.

US District Court Judge Jack Zouhary did not see it that way, concluding “Toledo bent over backwards to help Major Smith become a firefighter. He failed not because of racial discrimination, but because he was unable to perform a critical skill that firefighters need to protect their communities.”

The ruling details exactly why Judge Zouhary ruled the way he did, and fire instructors would be advised to read the entire ruling to understand why the documentation of critical details can be so critical:

  • The test Smith failed is called the vertical-ventilation test.
  • To pass, firefighter recruits must climb a ladder onto a vacant home and, within ten minutes, cut a hole in the roof.
  • According to a City deputy fire chief, vertical ventilation “is a basic and essential firefighting technique that must be done in a quick and efficient manner when required at a fire scene.
  • It is done to protect the lives of both the firefighters as well as anyone who might be inside the building”
  • Recruits receive three opportunities to pass the test.
  • Smith and at least six of his thirty classmates took the vertical-ventilation test in March 2018. They had trained together and they took the test on the same roof.
  • Smith failed on his first attempt. So did a classmate.
  • The classmate passed on his second attempt, but Smith did not, at least in part because he hit the ladder with a running chainsaw.
  • Smith also failed on the third attempt.
  • The summary completed by Smith’s evaluators explains that he “would not follow directions given by instructors for safety” and “repeatedly cut towards his body instead of standing out of the way as he was instructed to multiple times”.
  • Consistent with City policy, the person in charge of recruit training recommended that Smith be dismissed from the academy for failing the vertical-ventilation test three times.
  • But Defendant Luis Santiago, then-chief of the fire department, gave Smith another chance.
  • Defendants Wade Kapszukiewicz, the City’s mayor, and Brian Byrd, the current fire chief, indicate Smith received special accommodation because City decisionmakers wanted a racially diverse fire department.
  • A second set of three attempts was scheduled for May, and Smith received eight hours of one-on-one training to prepare.
  • According to Smith’s instructor, Smith committed unsafe acts during this training, including cutting toward his body with a chainsaw.
  • Despite this extra practice, Smith failed his three attempts in May.
  • According to an evaluator, during one of the attempts, Smith broke a rafter under the roof, “struck the ladder twice with the [chain]saw, . . . and failed to finish the task in ten minutes”.
  • The person in charge of training again recommended that Chief Santiago dismiss Smith from the academy.
  • But Santiago discovered an inconsistency: During Smith’s March attempts, the ten-minute clock started when he reached the roof, after climbing the ladder. The May clock started earlier, when Smith began his ascent up the ladder. Santiago gave Smith a third set of three attempts to pass.
  • Smith received more one-on-one training in June. During this training, he again committed an unsafe act with a chainsaw.
  • A high-ranking firefighter who observed the training, David Hitt, testified that Smith’s “body was in line with one of the cuts that he had begun to make, which is an immediate fail as far as we’re concerned”.
  • But when an instructor asked Smith if he wanted more practice, Smith declined, saying “let’s get this over with”.
  • Later that same day, Smith failed his first of three June vertical-ventilation attempts.
  • An evaluator reported that Smith exceeded the ten-minute limit, failed to cut a hole of sufficient size, and “used the chainsaw in a way that could have caused serious harm to himself . . . the same act he had been instructed not to do on his second practice attempt that day”.
  • Observer Hitt testified that, in part because of Smith’s obvious chainsaw struggles, he “knew [Smith] wasn’t gonna pass”. Smith returned the next day for another attempt and failed again due to unsafe chainsaw use. When an evaluator told Smith what went wrong, Smith had a “meltdown” and “stormed off,” according to Hitt and the evaluator.
  • The evaluator later wrote, “Recruit Smith will harm himself if we continue this”.
  • But Smith tried again. This time, he struggled to start the chainsaw. “Even with all the instruction and practice,” noted the evaluator, “he acts as if it’s the first time he has ever used [a chainsaw]”.
  • Smith failed because he exceeded the ten-minute limit, and he was terminated the next day. No other recruit failed the vertical-ventilation test that year.
  • First, Smith claims he was “the only recruit required to pass the State test on a roof”.
  • Not true.  Undisputed evidence establishes that every recruit had to pass the vertical-ventilation test on a roof.
  • Second, Smith argues he was tested on a roof that was steeper than the roof used to test other recruits. But he and six classmates tested on the same roof in March.
  • In May and June, Smith did test on a different roof, which his evaluator chose because it was “almost identical” to the March roof.
  • Smith acknowledged before taking the tests, and photographs confirm, that the two roofs are similarly sloped.
  • The May-June roof also looks like a second roof used to test recruits in March.
  • But even if the May-June roof was steeper than others, its slope is not evidence of unfavorable treatment.
  • Smith had three opportunities to pass on the uncontroversial March roof, just like his six classmates.
  • Additional chances to pass, even on a slightly steeper roof, is an opportunity no one else received.
  • Smith was treated at least as well as the other recruits – he received the same training as his six classmates, who tested on the same roof in March.
  • In fact, Defendants treated Smith better than their policies required.
  • His three March failures could have been the end of his tenure with the fire department, but Defendants instead gave him six more chances, along with hours of one-on-one help.
  • No recruit had ever received more than three opportunities to pass the vertical-ventilation test. Smith does not satisfy his prima-facie burden … and his Title VII claim must be dismissed.
  • Smith provides no reason to believe that some other factor was the actual reason for his termination.
  • For instance, he cannot point to a single concrete example of racial bias against him at the academy.
  • His briefs and accompanying materials are littered with vague, secondhand accounts – many unsubstantiated — of racial bias in the fire department, including at least one brazen misrepresentation of the record.
  • Such grasping is “wholly insufficient . . . to establish a claim of discrimination.”
  • Smith’s other claims fare no better.
  • The City of Toledo bent over backwards to help Major Smith become a firefighter. He failed not because of racial discrimination, but because he was unable to perform a critical skill that firefighters need to protect their communities.
  • Accordingly, Defendants’ Motion for Summary Judgment is granted, Smith’s request for additional discovery is denied, and the Complaint is dismissed.

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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