How Do We Deal With An Incompetent Probie

Today’s burning question: Is it legally acceptable for a chief officer to recommend that a probationary firefighter resign during a fire academy?

Answer: There is nothing inherently illegal with an officer recommending that a probie resign. The problem comes in when the probie can make a case that the officer's true motivation is the probie's race, gender, religion, age, ethnicity, national origin, sexual orientation, gender identity, disability, political affiliation, exercise of his/her First Amendment Rights, whistle blowing, or some other protected classification.

A follow up: Is it legally acceptable to tell a recruit in a training academy that they may not be cut out for the job?

Answer: The answer is essentially the same.

The problem is we are all human, and as such we are subject to human failures and weaknesses. One of those weaknesses is we can be "primed" to see fault in some people that we do not see in others. The book Blink by Malcolm Gladwell discusses some PhD level research into this phenomenon in a very down to earth way. 

As a result a well-intentioned drill instructor may find fault with (say for example) a woman probie and sub-consciously ignore comparable faults in a male probie. It is the way we are wired – it is not a conscious thing on the drill instructor's part. In fact very often if confronted the drill instructor will insist that he is just as hard on everyone.

ON THE OTHER HAND there are women who do not belong in the fire service. There are minorities who do not belong in the fire service… just as there are white males who do not belong in the fire service. Given our inherent human propensity to make mistakes when it comes to being objective about other people, this area is fraught with problems. 

So, the long winded answer to your questions, while it may be legal for an officer to (a) recommend that a probie resign or (b) tell the probie he/she is not cut out for the job, it is somewhat risky liability-wise (not to mention unfair) to do so without taking steps to ensure we are evaluating the probie objectively. This requires us to have  objective criterion that we apply to all probies in a uniform manner.

Having multiple officers/evaluators independently reach the same conclusion can also help minimize the risk of a bias problem. Even then it is no guaranty that biased decision-making (or allegations of biased decision-making) will not creep into the mix… but it puts us in a much more defensible position. At some point – some people do need to be told – "kid, this job is just not for you."

Here is a video of Malcolm Galdwell explaining a portion of "priming". I could not find one that discusses the aspect of priming that is more applicable to the issue at the heart of this burning question – but the clip is pretty interesting none-the-less. Our biases can and do prime us to find fault with some and ignore it in others.


Just found this one – perhaps a bit more on point:


Here’s probably the best:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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