Houston Prevails in Race Discrimination Suit

The Texas Court of Appeals has ruled in favor of the City of Houston in a race discrimination suit brought by a probationary firefighter who was dismissed toward the end of his probationary period. Madison T. Garner filed suit contending his termination in 2016 was based upon his race, and that he was subjected to a racially hostile work environment.

Garner alleged that Station 8, where he was assigned after the academy, “was reputed for discriminating against Black cadets and making them resign.” He also claimed that he was “terminated, a week before finishing his 15-month probationary period” and that he “was terminated for ‘repeated failures.'”

The city sought to have Garner’s complaint dismissed. It alleged that Garner:

  • “demonstrated a pattern of failure during his evaluation periods and has failed to successfully meet the minimum requirements outlined in the Houston Fire Department’s Probationary Firefighter Guideline which is a minimum requirement of his employment.”
  • “Failed to successfully pass Performance Standard 1 (Turnout Evolution) in the allotted time”;
  • “Initially failed Phase 2 final examination and had to retest, which he successfully passed”;
  • “Failed to successfully complete the MES EMT Credentialing process”;
  • “Failed Phase 3 final examination requiring a retest”
  • “A recommendation for termination may be submitted to the Fire Chief at any time the Probationary Firefighter demonstrates a pattern of failure during evaluation periods.”

When the trial court denied the city’s motion, the city appealed to the Fourteenth District of the Texas Court of Appeals. Quoting from the Court of Appeals’ decision:

  • To establish a prima facie case of race discrimination, the employee must show that he is (1) a member of a protected class; (2) was qualified for his position; (3) suffered an adverse employment action; and (4) was replaced by someone outside his protected class, or that others similarly situated outside the protected class were treated more favorably.
  • Captain Paige [from Station 8] testified that they are only assigned one probationary fire fighter at a time and Captain Everett testified he believed Garner was the only probationary firefighter at Station 8 during the relevant time frame, but Captain Everett was not “100 percent” certain.
  • Garner testified there were “around” five other probationary fire fighters at Station 8. Garner, however, failed to provide any details regarding these additional probationary fire fighters at Station 8, including whether they were outside his protected class and whether those outside his protected class were treated more favorably.
  • Therefore, we conclude that Garner failed to raise a fact issue regarding a prima facie case of race discrimination.
  • Garner complains of incidents at both the Training Academy and at Station 8 as bases for his hostile-work-environment claim. While at the academy, Garner complains that he was ordered by Captain Zapata to move a pallet of bricks from one area to another area about forty feet apart because Garner did not shave his facial hair close enough. In his deposition, Garner testified that he was required to have a clean shave of his facial hair so that his mask could seal, per HFD’s policy; that Captain Zapata did not believe he was clean shaven on that particular day; and that he was ordered to move the pallets as a result. Garner testified that after the incident when he was asked to move the bricks, he presented Captain Zapata with documentation of a skin condition that prevented him from shaving close to his skin, and that another individual who was not African American was also told to move bricks at the same time as Garner for not shaving as well.
  • Garner also complains that his vehicle was broken into while he was at the Training Academy and that someone stole his “ID, credit card, some clippers, a hoodie, [and] a cell phone.” Garner testified in his deposition that Captain Zapata gave Garner’s ID and credit card to Garner “during the middle of some training.” According to Garner, he does not know why his vehicle was broken into or who broke into his vehicle. Finally, Garner alleged that Zapata tried to derail Garner’s graduation from the academy by falsely claiming that Garner needed more volunteer hours the day before the graduation.
  • Viewing the totality of the circumstances, we conclude that the conduct alleged by Garner, even if true, was not extreme and did not affect the terms and conditions of employment.

Here is a copy of the decision:

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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