A 46-year-old recruit who was terminated from the Howard County Fire Department’s fire academy in 2018 has filed suit in federal court alleging age discrimination. Robert D. Whittaker, III, filed suit in US District Court for the District of Maryland.
Whittaker contends he was “in excellent physical condition and had previously cycled through Spain and France, including eight stages of the Tour De France route, raced in 5ks, and raced in a Tough Mudder (an endurance race of 10 to 12 miles through multiple significant obstacles).” Nevetheless, officers at the academy treated him differently than younger recruits, and made discriminatory comments about his age.
After Whittaker suffered a knee injury, he was not permitted to continue in either the classroom or practical sessions. Quoting from the complaint:
- Shortly after Plaintiff’s injury and being removed from class without his books, the trainees, including Plaintiff, had a practical drill in late April or early May 2018.
- Because he missed classroom and training on this drill, Plaintiff did not pass this drill on his first attempt.
- Not passing practical drills on the first attempt happens with some regularity amongst the trainees.
- In fact, some younger trainees took practicals up to five times without passing with no discipline or adverse actions against them.
- On May 24, 2018, Defendants stated Plaintiff had to resign or would be terminated. Plaintiff declined to resign and Defendants terminated his employment.
- When Plaintiff was terminated from employment, Defendants, per Assistant Chief Sanchez, claimed he was terminated for “not meeting standards.”
- However, this was obviously false because Plaintiff was satisfactorily performing and passed every class.
- At the time of his termination, Plaintiff was easily the oldest Trainee and certainly the only trainee over 35.
The complaint goes on to reference social media comments made by a Howard County fire captain about a 51-year-old rookie who graduated from the Milwaukee Fire Department. The captain’s comments referenced the fact that heart attacks are the primary killer of firefighters, and that a 51-year-old rookie will spend his entire career in prime heart attack range given the time to reach a minimum pension is 20 years. Whittaker alleges these comments “reflect the discriminatory animus directed to Plaintiff.”
The complaint has a single cout of age discrimination under the Age Discrimination in Employment Act (ADEA), and seeks at least $1 Million in damages. Here is a copy of the complaint:
Fire Law instructors and students – there’s an interesting paradox that might be worth discussing in class. The allegations in the complaint about the Howard County captain’s comments on the cardiac risks to older firefighters are factually correct, yet they are alleged to be evidence of a discriminatory animus. Can they be both? What’s more the comments would more than likely be protected speech, and therefore be beyond the ability of the department to regulate. Should a fire department event attempt to regulate such speech out of concern for litigation?