Failure To Cut Hole In Roof Dooms Firefighter’s Race Discrimination Claim

Written on 07/09/2022
Will Aitchison

Major Smith was hired by the City of Toledo, Ohio, as a firefighter recruit in 2017, and was assigned to the Toledo Fire and Rescue Training Academy. The curriculum at the Academy includes both classroom and hands-on learn­ing; recruits then take both written and practical skills examinations. The Academy gives recruits three chances to pass their practical skills exams. If recruits do not pass after three tries, they are dismissed from the Academy.

One such exam is the vertical ventilation test. To perform this task, firefighters cut a hole in the roof of a burning building to release the toxic gasses and pressure that build up inside. This is an essential skill that firefighters must be able to do quickly and effi­ciently. To pass the vertical ventilation test, recruits wearing full firefighting gear, must climb up a ladder and cut a four-by-four-foot hole in a roof within ten minutes.

Recruits first study this skill in the classroom and then practice on a sim­ulator – a pretend roof with a plywood board in the space where they must cut the hole. The simulated roof is not attached to a real house, so it is only a few feet off the ground. Recruits then take the Academy-required practical skills exam for vertical ventilation on a real roof. These tests are done on houses around the Toledo area that are set to be demolished.

Smith failed in three attempts to pass the vertical ventilation test.

Chief Sally Glombowski, then-head of training for firefighter recruits, reviewed Smith’s exam results and rec­ommended that he be dismissed. But because the City was trying to attain a more racially diverse fire department, Smith was given another opportunity to take the vertical ventilation test. No other firefighter had ever been given more than the initial three chances to pass. Smith again failed on each of these three attempts.

Some members of the local African American community believed that Smith was the target of racial discrim­ination, and Toledo’s mayor gave Smith yet another set of three attempts to pass the test. Smith again failed the test all three times he attempted it and was dis­missed from the Academy the next day.

Smith sued, contending that he was the victim of racial discrimination. The federal Sixth Circuit Court of Appeals rejected his lawsuit.

The Court ruled that “the Academy requires recruits to pass the vertical ventilation test on a real roof before they can take the state test on a simulator. And Smith did not pass the test on a real roof. There is no dispute on these two points. Yet Smith suggests that summary judgment was inappropriate because a fact dispute remains over whether the Academy’s ‘real roof’ test is also a requirement for state certification.

“We disagree. Whether this is strictly an Academy requirement or also a state requirement is immaterial. There is no dispute that every recruit, not just Smith, was required to pass the Academy’s test on a real roof. Smith acknowledges that the Academy may require more of its recruits than the state minimum and concedes that it is not unfair for the Academy to require that he take a real roof test.

“Still, Smith suggests that his fail­ure to pass the Academy’s vertical ven­tilation test was not a proper reason to dismiss him because his test was harder than the test given to his classmates. The defendants, he claims, manufactured his failure through their inadequate and unfair training and testing.

“This claim does not even get out of the starting gate with respect to the first round of testing in March. The evidence in the record shows that before the March test, Smith got the same instruction as the other recruits in his squad. The whole squad then tested on the same roof. That training was sufficient to enable everyone but Smith to pass the March test.

“Even so, Smith was offered an unprecedented second round of tests in May, and then a third in June. The record shows that before the June tests, which were performed on the same roof as in May, Smith was offered additional practice and training. Yet Smith de­clined, instead telling instructors, ‘Let’s get this over with’ and that he ‘needed no more practice.’ No reasonable juror could conclude, on these facts, that Academy instructors insufficiently trained Smith, because of his race, or in order to manufacture his failure, as Smith argues.”

Smith v. City of Toledo, 2021 WL 4057701 (6th Cir. 2021).

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