Alabama Captain Sues Claiming Discrimination and Retaliation

A former captain with an Alabama fire department has filed suit claiming the failure to promote him to battalion chief in 2020 was due to his race, and that after complaining about it he was retaliated against. Captain Demetrius Webb filed suit in federal court against the City of Homewood and Fire Chief Nicholas Hill.

Captain Webb’s suit was filed on August 18, 2023, and points to a historic under-representation of African Americans in the Homewood Fire Department. He claims he was passed over repeatedly for promotion while “less capable white firefighters were repeatedly promoted past him.” He also cited the absence of African American in the officer corps.

Quoting from the complaint:

  • Chief Hill, who is white and became Homewood’s Fire Chief in 2019, chose to appoint a white Captain, Davis Everson, to the role of interim Battalion Chief, passing over Capt. Webb, who expressed an interest in serving in the interim role.
  • Everson, as of the fall of 2020, had 15 fewer years of experience with the Homewood FD than Webb, and one less year of experience as Captain than Webb.
  • Moreover, while Webb had approximately 13 prior years of experience as a Lieutenant, Everson had only three years of prior experience as a Lieutenant.
  • Webb had also served periodic stints as a relief, fill-in shift commander since 2008—directly relevant experience that Everson lacked.
  • Chief Hill did not follow the normal interview protocol for Battalion Chief selections, which during prior years consisted of the Fire Chief and the other Battalion Chiefs convening a formal session in which candidates were questioned about program management and problem-solving skills.
  • In lieu of the usual protocol, Chief Hill did not conduct formal candidate interviews and instead invited Capt. Webb for an informal one-on-one exchange, in which Chief Hill posed a sole generic question as to what made Capt. Webb qualified to be a Battalion Chief.
  • While dispensing with the formal interview process that traditionally has been the core of selections for senior Homewood FD positions, Chief Hill also introduced a new element into the Battalion Chief selection process: a multi-tiered “ranking” that purports to measure experience in approximately 35 facets of firefighter duties.
  • The new formula Chief Hill implemented does not measure proficiency or aptitude, as does the testing for promotions to Captain; nor does it evaluate the depth of the candidate’s experience. The formula does not compensate for the fact that the relative job responsibilities of ranking officers has varied over the past 20 years as the Department has grown in size.
  • The newly configured test for Battalion Chief selections at the Homewood FD is a textbook method of rigging a selection process to devalue seniority and mitigate substantial gaps in qualifications, which operated to the detriment of an exceptionally experienced black candidate and to the benefit of a lightly qualified, inexperienced white candidate.
  • On or about October 11, 2020, Everson was formally promoted to the role of Shift Battalion Chief.
  • In late December 2020, Capt. Webb contracted Covid-19 and was required to take an extended two-month medical leave to recover.
  • Given the duration of his medical leave, Capt. Webb was directed to obtain a fit-for-duty physical from both his personal physician and from one of the physicians at the Occupational Health Clinic at St. Vincent’s Hospital, who are contracted to perform medical examinations for public safety personnel in Homewood.
  • On or about February 24, 2021, Capt. Webb completed the requisite physical exams and was given clearance to return to his duties with no restrictions.
  • On March 10, 2021, Capt. Webb initiated the charge intake process at the EEOC.
  • On or about March 23, 2021, Capt. Webb was suddenly notified by the Department that he needed to take another physical exam administered by a second St. Vincent’s doctor in the Occupational Health Clinic. In the intervening month, he had experienced no symptoms of Covid-19 or any other health difficulties.
  • To Capt. Webb’s knowledge, requiring a third physical examination after a return from medical leave in the absence of any signs of continued impairment was unprecedented.
  • Capt. Webb’s physical on March 23 included an electrocardiogram (“EKG”) and a spirometry test that measures pulmonary functioning, such as the capacity to breathe air in and out of the lungs.
  • The physician performing the physical, Dr. C.B. Thuss, Jr., informed Capt. Webb that he presented as a robust, healthy individual and that there were no apparent physical limitations on his ability to do his job.
  • On April 22, 2021, Capt. Webb was informed by Chief Hill that he was being relieved of duty because Dr. Thuss had concluded that Capt. Webb was unlikely to pass a new strength and endurance test that Homewood FD was adopting for firefighters because of indicators from the March 23 physical of diminished breathing capacity and “borderline” EKG results.
  • Homewood FD had issued verbal and written guidance to its firefighters in or about February 2021 that a failure to pass the new physical fitness test would not be a basis for termination or any adverse employment action, and that the Department would provide assistance or treatment to any firefighter who failed to pass the test.
  • The written narrative from Capt. Webb’s third physical examination does not diagnose any actual heart or pulmonary disease.
  • The narrative pointedly does not in any manner declare Capt. Webb unfit for duty and suggests only that he receive additional cardiological and pulmonary evaluation prior to taking the new physical fitness test.
  • In addition to the order relieving him of duty, Capt. Webb was instructed that he would need to bear the expense of additional testing, a departure from Homewood FD’s standard practice of bearing the expense of work-related medical clearance examinations.
  • Chief Hill’s decision to involuntarily sideline Capt. Webb was tantamount to an indefinite administrative leave of an open-ended duration, particularly given the vague parameters of the conclusions from the third physical.
  • Precisely what degree of medical certainty would have been sufficient for Capt. Webb’s reinstatement was, and remains, unclear.
  • Chief Hill’s de facto administrative leave of a firefighter who had not been declared unfit for duty or in any immediate risk has all the earmarks of a search for some rationale to remove Capt. Webb, as opposed to the neutral enforcement of the Department’s existing policies.
  • Chief Hill’s removal of Capt. Webb in the aforementioned circumstances reflected the kind of arbitrary exercise of the Chief’s decision-making authority that is probative of a retaliatory intent.
  • Given the lack of a clear pathway to reinstatement, Capt. Webb subsequently resigned from the Department.
  • Capt. Webb’s discriminatory and retaliatory treatment by Homewood and Chief Hill has caused him emotional distress, mental anguish, and humiliation.

WVTM13 quoted from a city statement on the suit:

  • Captain Webb has unfortunately sued the City and Chief Hill. The complaint has inaccuracies, omissions, and lack of context. The City does not discriminate based on race and has policies against racial discrimination. Under Alabama law, the Fire Department must hire from lists of candidates provided by the Personnel Board of Jefferson County. The City and Chief Hill were concerned that Captain Webb could not pass a fitness test. Captain Webb expressed concern that he could not pass a test, and he did not take the test. Captain Webb also decided during his career not to obtain paramedic certification, which is an important credential in any Fire Department. The City did not discriminate against Captain Webb, and Chief Hill did not retaliate against him.
  • All firefighters have fitness requirements. Captain Webb retired voluntarily from the Homewood Fire Department instead of taking limited duty. The EEOC did not find that the City discriminated against Captain Webb after an investigation lasting more than two years. The City of Homewood has a racial composition in its workforce similar to the racial composition of workforces in surrounding communities. The City and Chief Hill will defend this lawsuit vigorously.

Here is a copy of the complaint:

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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