Smith v. City of Toledo

• Decision Date: 07 September 2021
• Docket Number: No. 20-3434,20-3434
• Citation: 13 F.4th 508
• Parties: Major SMITH, III, Plaintiff-Appellant, v. CITY OF TOLEDO, OHIO; Wade Kapszukiewicz, Mayor, City of Toledo; Brian Byrd, Chief, City of Toledo Fire and Rescue Department; Luis Santiago, Retired Chief, City of Toledo Fire and Rescue Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

13 F.4th 508

Major SMITH, III, Plaintiff-Appellant,

v.CITY OF TOLEDO, OHIO; Wade Kapszukiewicz, Mayor, City of Toledo; Brian Byrd, Chief, City of Toledo Fire and Rescue Department; Luis Santiago, Retired Chief, City of Toledo Fire and Rescue Department, Defendants-Appellees.

No. 20-3434

United States Court of Appeals, Sixth Circuit.

Argued: March 3, 2021

Decided and Filed: September 7, 2021

ARGUED: Norman A. Abood, THE LAW OFFICE OF NORMAN A. ABOOD, Toledo, Ohio, for Appellant. Jeffrey B. Charles, CITY OF TOLEDO, Toledo, Ohio, for Appellees. ON BRIEF: Norman A. Abood, THE LAW OFFICE OF NORMAN A. ABOOD, Toledo, Ohio, for Appellant. Jeffrey B. Charles, Edward T. Mohler, CITY OF TOLEDO, Toledo, Ohio, for Appellees.

Before: WHITE, LARSEN, and NALBANDIAN, Circuit Judges.

LARSEN, J., delivered the opinion of the court in which NALBANDIAN, J., joined. WHITE, J. (pp. 522–23), delivered a separate opinion concurring in part and dissenting in part.

LARSEN, Circuit Judge.

Major Smith, III wanted to be a firefighter. But he could not perform the critical firefighting skill of cutting a hole in a roof using a chainsaw. The Toledo Fire and Rescue Training Academy (the Academy) had a policy of dismissing recruits who were unable to perform this skill after the third attempt. Smith, however, was given nine chances to perform this skill; yet he failed every time. He was dismissed from the Academy. Smith argues that he was dismissed because of his race. The district court disagreed and granted summary judgment to defendants. We AFFIRM.

I.

The Academy hired Smith as a firefighter recruit in December 2017. Recruits at the Academy undergo rigorous training in almost three dozen topics. Each class of recruits is broken up into smaller "squads." Each squad completes the entire curriculum together. The curriculum 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. Because it would be impossible to test every recruit in the class on the same house, "homes of similar construction" are chosen for the test. Performing this skill on a real roof is substantially more difficult than doing it on the simulator. After recruits pass the Academy-required vertical ventilation test on a real roof, they take the much easier state certification test on the simulator.

Smith and his squad took the vertical ventilation test in March 2018. After going through the classroom and hands-on instruction together, they all took the test on the same house. Everyone passed on the first attempt, except for Smith and one other recruit. The other recruit passed on his second try. Smith failed both his second and third attempts. The evaluating instructors noted that Smith hit the ladder with the running chainsaw, "would not follow directions given by instructors for safety," and "repeatedly cut towards his body instead of standing out of the way as he was instructed to multiple times." Smith was given a copy of his score sheet, which explained why he failed and included the notes from his evaluators.

It was Academy policy to dismiss recruits after failing a practical skill test three times. 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. And although Academy policy dictated that recruits not be allowed to move on to the next skill if they had failed, Smith was allowed to complete the rest of the course with his squad and to participate in the graduation ceremony, though he was not given a certificate of completion. He was not allowed to take the Academy's final exam or the state certification exam on the simulator because he had not yet passed the Academy exam on the roof.

In May, Smith was given a second set of opportunities to pass the test. Lieutenant Eric Pinkham testified that he chose a house that was "almost identical" to the house Smith and the rest of his squad had tested on in March, and at the time, Smith agreed that the May house "look[ed] like the same one" as the March house, though he was "not totally sure." Smith would later testify, however, that when he got on the roof of the May house, it felt like it "had a steeper pitch." It is undisputed, however, that in one respect, testing on the May house should have been easier; it had a newer roof and fewer layers of shingles than the house that was the site of Smith's first failed attempts.

Before the May test, the Academy provided Smith with eight hours of individual instruction and practice with three trainers. At the end of his training session and before testing, instructors asked Smith if he had any questions or wanted more practice. He said no.

Smith again failed each of his three attempts. Instructors noted that he again hit the ladder with the running chainsaw, broke a rafter under the roof, and continued to cut toward his body with the chainsaw. Chief Glombowski again recommended that Smith be dismissed from the Academy. Although Fire Chief Luis Santiago initially agreed, he later argued that Smith should be given another chance because of timing inconsistencies during the May testing. Specifically, the examiners started the timer when Smith was at the base of the ladder in the May tests, while they had started the timer when Smith was on the roof in the March tests.

Tensions were high. Some members of the local African-American community believed that Smith was the target of racial discrimination, and Mayor Kapszukiewicz addressed some of those concerns at a meeting. After the meeting, Smith was given yet another set of three attempts to pass the test. He was given another round of individual instruction and was tested on the same roof he had tested on in May. Battalion Chief David Hitt, also African-American, was there to observe and ensure that the test was fairly administered. A representative from the City's Office of Diversity and Inclusion was also present.

During his training for the June test, Smith again mishandled the chainsaw. Though he had been repeatedly instructed otherwise, he cut toward his body; Chief Hitt, who observed the June training, noted that this would constitute "an immediate fail" on an actual exam. The chainsaw stalled out several times. Hitt thought that Smith needed more work on his sawing skills. But though instructors asked Smith, before his first testing attempt in June, if he would like more practice, Smith declined, saying "I need no more practice; let's get this over with." Later, at his deposition, he explained that he did not want to take up more time because "they [were]n't gonna pay [him] overtime," he "had already had three attempts at practicing and [he] felt good about it," and he wanted to "just try to finish it and try to get it done as quickly as possible."

Observing the June test, Chief Hitt could tell that Smith could not handle the chainsaw correctly and struggled to balance and maneuver on the roof. Hitt thought the height and pitch of the roof were too steep, "totally unsuitable for [Smith's] skill level" and "tough [even] for a seasoned firefighter." He also criticized the instructors for choosing a house that already had cuts in the roof, which limited the space available for Smith to do the test, and for inadequately training him in the areas in which he so clearly needed help. Hitt knew that, given the difficulties of the test and Smith's inadequate skill level, Smith was not going to pass the test.

Smith failed the test all three times he attempted it. During one attempt, the chainsaw stalled out and it took Smith two to three minutes to get it started again. An evaluator wrote that "[e]ven with all the instruction and practice [Smith] acts as if it's the first time he has ever used [a chainsaw]," "[t]he chainsaw was so poorly used that it failed to start for the second attempt that day," and "Recruit Smith will harm himself if we continue this." Smith was dismissed from the Academy the next day.

Smith then filed a lawsuit in federal district court. He sued the City of Toledo; Wade Kapszukiewicz, Mayor of the City of Toledo; the City of Toledo Fire and Rescue Department (TFRD); Brian Byrd, Chief of the TFRD; and Luis Santiago, Retired Chief of the TFRD. He later voluntarily dismissed TFRD from the case. He claimed racial discrimination, in violation of 42 U.S.C. §§ 1981 and 2000e-2(a)(1) (Title VII) and Ohio Rev. Code (ORC) § 4112.02 ; deprivation of a liberty interest, in violation of 42 U.S.C. § 1983 ; conspiracy to violate civil rights, in violation of 42 U.S.C. §§ 1985(3) and 1986 ; and intentional infliction of emotional distress under Ohio law. He also filed generic claims of "respondeat superior."

Defendants moved for summary...