Major Smith, III v. City of Toledo, Ohio

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0210p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

MAJOR SMITH, III,

│

Plaintiff-Appellant, │

> No. 20-3434

│

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. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:18-cv-02948—Jack Zouhary, District Judge.

Argued: March 3, 2021

Decided and Filed: September 7, 2021

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

_________________

COUNSEL

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.

LARSEN, J., delivered the opinion of the court in which NALBANDIAN, J., joined.

WHITE, J. (pp. 18–20), delivered a separate opinion concurring in part and dissenting in part.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 2

_________________

OPINION

_________________

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

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 3

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.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 4

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.”

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 5

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 judgment. The district court granted summary judgment

to defendants on all claims and denied Smith’s request for additional discovery. Smith now

appeals.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 6

II.

A.

We review a district court’s grant of summary judgment de novo. O’Donnell v. City of

Cleveland, 838 F.3d 718, 725 (6th Cir. 2016). Summary judgment is warranted if the movant

can show that “there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We construe reasonable inferences from the

facts in favor of the nonmoving party and do not weigh the evidence or make credibility

determinations. Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). The party

opposing the motion must show that “there is a genuine issue for trial” by pointing to evidence

on which “a reasonable jury could return a verdict” for that party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986) (quotations omitted). However, mere allegations are not enough

to show a genuine issue of fact. Id. “[T]here must be evidence on which the jury could

reasonably find for the plaintiff.” Id. at 252.

B.

Smith alleges that defendants discriminated against him on the basis of race, in violation

of Title VII, 42 U.S.C. § 1981, and ORC § 4112.02. We analyze Smith’s state-law

discrimination claim and his § 1981 claim under the same framework we use for his Title VII

claim. Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (6th Cir. 2009); Russell v. Univ. of Toledo,

537 F.3d 596, 604 (6th Cir. 2008); Ohio Civ. Rts. Comm’n v. David Richard Ingram, D.C., Inc.,

630 N.E.2d 669, 674 (Ohio 1994).

1.

A plaintiff can characterize a racial discrimination claim as single-motive (i.e., that race

was the sole motivating factor) or mixed-motive (i.e., that race was a motivating factor among

other, legitimate factors). See White v. Baxter Healthcare Corp., 533 F.3d 381, 396 (6th Cir.

2008). In addition, a discrimination claim can be supported with direct or indirect evidence of

discrimination. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). Because Smith

argued that racial discrimination was the sole motivating factor behind his dismissal and did not

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 7

present any direct evidence of discrimination, the district court analyzed his claim using the test

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).1

That analysis proceeds in three steps. First, Smith must make out a prima facie case of

discrimination. Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 776 (6th Cir.

2016). Once he does, the burden shifts to defendants to articulate a legitimate,

nondiscriminatory reason for their decision. Id. The burden then shifts back to Smith to show

that the reason the employer gave “was not its true reason, but merely a pretext for

discrimination.” Id. (quoting White, 533 F.3d at 391–92). To make out a prima facie case,

Smith must show that “(1) [he] is a member of a protected group; (2) [he] was subjected to an

adverse employment decision; (3) [he] was qualified for the position; and (4) similarly situated

non-protected employees were treated more favorably.” Id. (alteration adopted) (quoting Peltier

v. United States, 388 F.3d 984, 987 (6th Cir. 2004)).

Defendants argue that Smith’s prima facie case fails because he was not qualified and

cannot show that similarly situated recruits of a different race were treated better than he was.

Alternatively, defendants argue that Smith cannot show that the stated reason he was dismissed

from the Academy—because he failed the vertical ventilation test—was actually a pretext for

race discrimination.

1Smith claims that the district court erred by failing to undertake a mixed-motive analysis and by failing to

consider direct evidence of discrimination. But Smith did not present his case to the district court as a mixed-motive

case and, even on appeal, does not explain how a mixed-motives analysis would help him. Nor did he provide the

court with direct evidence. “Direct evidence is evidence that proves the existence of a fact without requiring any

inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). Direct evidence of

discrimination proves “not only discriminatory animus, but also that the employer actually acted on that animus.”

O’Donnell, 838 F.3d at 725 (quoting Johnson v. Metro. Gov’t of Nashville, 502 F. App’x 523, 534 (6th Cir. 2012).

Such evidence is “rare.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). And

Smith did not provide any. Smith’s opposition to the motion for summary judgment noted generalized, second-hand

accounts of alleged discrimination between 1998 and 2014, particularly against another person, Chief Brian Byrd.

But allegations of discrimination at different times against different people are not direct evidence of discrimination

against Smith. See O’Donnell, 838 F.3d at 726; see also Rowan at 550. Moreover, Smith himself portrayed this

evidence not as direct evidence but as evidence of “pretext” or as “prima facie evidence” of a “practice” or a

“pattern of racial discrimination acted out on Plaintiff.” And, as Smith provided no citations to the record, the

district court was not obligated to consider this evidence at all. See Fed. R. Civ. P. 56(c)(3). The district court did

not err in analyzing Smith’s discrimination claim as he presented it: as a single-motive claim supported by indirect

evidence.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 8

With respect to the prima facie case, Smith has not identified a comparator—that is,

someone of a different race, who was similarly situated to him, but who was treated better. See

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (“[T]he plaintiff

and the employee with whom the plaintiff seeks to compare himself or herself must be similar in

all of the relevant aspects.” (citation, quotation marks, and emphasis omitted)). There were thirty

recruits in Smith’s class. Three of them, including Smith, were African-American, two were

women, and two were Hispanic. One of the African-American recruits, Anthony Bronaugh, took

different employment with the City of Toledo and did not become a firefighter. 2 Of the

remaining twenty-nine recruits, twenty-seven passed the vertical ventilation test on the first try;

the twenty-eighth passed on his second try; Smith never passed, despite nine attempts. It is

undisputed that no recruit, other than Smith, has ever been offered more than three chances to

pass the test. And there is no evidence that any recruit has ever graduated from the Academy

without passing the test. It appears, therefore, that Smith has failed to identify anyone, of any

race, who was similarly situated to him but who was treated better. See Arucan v. Cambridge

East Healthcare Center/Sava Seniorcare, LLC, 763 F. App’x 415, 420 (6th Cir. 2019) (stating

that because no other therapist had “ever treated the wrong patient,” the employer “has never had

an employee who is ‘similarly-situated’ . . . meaning that [the employer] could not have treated

such an employee differently”).

But, Smith says, this is because his test was rigged. He claims the defendants

“manufactured” his failure through their “wholly inadequate” training and testing of him. If by

inadequate, Smith means “unequal,” then the legal principle Smith asserts is surely right. An

employer cannot claim to dismiss employees according to a neutral criterion, like passing a test,

if it actually gives different and harder tests to some employees because of their race. See

Johnson v. Louisiana, 351 F.3d 616, 622–24 (5th Cir. 2003); Sledge v. Goodyear Dunlop Tires,

275 F.3d 1014, 1020 (11th Cir. 2001) (per curiam).

How such a claim fits into the McDonnell-Douglas framework is unclear. We might

analyze such a claim at the prima facie case stage—Smith could show that “similarly situated

non-protected employees were treated more favorably,” see Jackson, 814 F.3d at 776, by

2There is no evidence in the record that Bronaugh failed, or even took, the vertical ventilation test.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 9

showing that they were given an easier test. Or we might consider it, as Smith seems to suggest,

at the stage of showing pretext—Smith might show that the employer’s stated reason for

dismissing him (failing the test) was not its “true reason,” see id., if, in fact, the test was a sham.

Sometimes, as our cases show, the “same evidence is germane to each inquiry.” McCarthy v.

Ameritech Publ’g, Inc., 763 F.3d 469, 482 (6th Cir. 2014); see also Jackson, 814 F.3d at 779.

But whether we deploy this legal principle at the prima facie case stage, or at the point of

showing pretext, Smith’s case fails for a want of evidence showing that the Academy gave him a

materially harder test than it gave to recruits of other races.

The parties do not dispute that being able to properly perform vertical ventilation is an

essential firefighting skill. Vertical ventilation protects the lives of firefighters and those inside

of a burning building. And as Chief Hitt acknowledged, firefighting is dangerous; errors of

action or inaction can get firefighters killed in the line of duty.

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 never passed 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

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 10

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. But Smith says that the training and testing in these rounds was so unfair “that

there was no way [he] could pass the test.” To show this, Smith must demonstrate, at least, that

the conditions of his May and June tests were materially worse than the tests he and his

classmates took in March. Smith was tested on the same house in May and June, but that house

was different than the one he tested on in March. Defendants acknowledge that they cannot test

every recruit on the exact same roof. The vertical ventilation test is performed on real homes

that are slated for demolition; it would be impossible to test every recruit on the same roof. So

the Academy chooses “homes of similar construction.”

Lieutenant Pinkham explained that he chose the house that Smith tested on in May and

June because it was “almost identical” to the one Smith had tested on in March. When asked

about the style of the roof before his May test, Smith agreed that it looked like the roof he had

tested on in March. But Smith testified that once he got on the roof, “it did not feel like the exact

same one. [He] couldn’t really stand up and cut on this roof because it had a steeper pitch.”

Yet, while the roof may have been steeper, Smith never alleges that the pitch of the roof

was materially steeper than those used by the other recruits in his class. Private Keevin London,

another African American recruit in Smith’s class, said that the roof he and the other members of

his squad tested and passed on was similar to the roof Smith tested on in May and June. And

indeed, the district court was not able to discern any material differences in the pitches of the

roofs in its review of the photographs. Neither can we. Furthermore, there is no dispute that at

least one condition of the roof Smith tested on in May and June made for a safer and easier test

than the one he took with the rest of his squad in March: the roof was newer and had fewer

layers to cut through. Smith’s testimony that the pitch of the roof he tested on in May and June

felt steeper, without any comparison to the roofs normally used, is not sufficient to permit a

reasonable juror to conclude that the house Smith tested on in May and June was materially

unequal to the houses his classmates tested on. See Upshaw v. Ford Motor Co., 576 F.3d 576,

586 (6th Cir. 2009).

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 11

Nor are Smith’s claims that he was given inconsistent instructions sufficient to raise a

genuine dispute about whether he was given unequal training ahead of the May and June tests.

Smith says that he was not consistently instructed to “cut away from [his] body.” He also says

that different instructors taught him different methods, which “made [for] some confusion.” But

again, to succeed on a Title VII claim, he has to show that he was treated differently (and worse)

than others not of his race; he cannot succeed on a Title VII claim simply by claiming that the

level of instruction was generally poor. His claims about his equipment problems fail for similar

reasons: though he complains that the instructors allowed the time to run while the chainsaw

stalled, he does not point to any evidence showing that the instructors stopped the clock for his

classmates. And he acknowledges that he was not the only one who struggled to use the

chainsaw. He noted that during training, those who had used a chainsaw before found it easier

“to turn [the chainsaw] on and manipulate [it], but the ones that never did had issues with it as

well.”

The evidence in the record shows that before the first round of testing in March, Smith

got the same instruction as the other recruits in his squad. He has not disputed this. That

training was sufficient to enable all of his classmates to pass the test. After he failed the March

tests, Smith was given his score sheet and a packet of other information to review ahead of the

May tests. The score sheet, which documented his failed attempts, explicitly said “Smith

repeatedly cut towards his body instead of standing out of the way as he was instructed to

multiple times.” Smith signed a document indicating that he had received this information to

review. Then, Smith was given additional, individual instruction before the May and June tests,

an opportunity no other recruit had ever been given. Even if Smith were genuinely confused on

proper cutting technique between the March and May tests, he was given ample opportunity but

declined to ask questions or to further practice his sawing technique before the May tests. In

addition, he acknowledged in a memo to Chief Glombowski before the June testing that he was

told to cut “upwards and away from your body.” This shows that, even assuming he was “not

taught that way before,” he understood the correct way to cut before the June testing. Lastly, he

again declined the opportunity to ask questions and practice his cutting technique more, saying

that he understood and that he was ready to go.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 12

For similar reasons, Smith’s claim is not aided by the testimony of Chief Hitt. Hitt

observed Smith’s June training and testing and believed that “things were not done properly.”

Hitt believed that Smith’s instructors had not sufficiently demonstrated how to use a chainsaw or

how to perform the skills that would be tested. He thought that the pitch of the roof was too

steep for Smith to maneuver, and would have been tough even for a more seasoned firefighter,

and that the instructors should have chosen an un-cut roof so that Smith would have more space

available to him. Hitt also testified that when he was an instructor at the Academy, they did not

allow anyone to fail because they would not test recruits until they were ready to pass.

Yet Hitt’s testimony does not advance Smith’s claim of race discrimination. Smith must

show that his testing and training conditions were materially different (and worse) than those

used to prepare and test the other recruits. See Johnson v. Ohio Dep’t of Pub. Safety, 942 F.3d

329, 331 (6th Cir. 2019). Hitt did not observe the training or the test conditions of any other

recruit, so his testimony cannot shed light on whether Smith was treated less favorably than

others. Furthermore, his testimony about how the Academy trained and tested recruits when he

was an instructor does not show how the Academy trains and tests now. Hitt left the Academy in

2008, almost ten years before Smith started as a recruit. Hitt’s testimony that recruits were

trained differently ten years before Smith entered the Academy does not show that Smith was

trained and tested differently than his contemporaries.

Hitt testified that when he was an instructor at the Academy, they would not test recruits

until they were certain to pass. Hitt suggests that this is the better policy. But again, that

testimony does not bear on the comparative question: was Smith treated worse than his

classmates? And in any event, 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 “need[ed] no

more practice.” Smith says this was “[b]ecause I had already had three attempts at practicing[,]

and I felt good about it.” No reasonable juror could conclude, on these facts, that Academy

instructors insufficiently trained Smith, because of his race, and in order to manufacture his

failure, as Smith argues.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 13

Finally, Smith argues that evidence of discrimination in the fire department shows that

the Academy’s justification for dismissing him was pretextual. We have recognized that

“discriminatory statements” may establish “the existence of a discriminatory atmosphere,”

which, in turn, could contribute to a finding of pretext. See Ercegovich, 154 F.3d at 356.

However, we have also said that “[a]ctions by nondecisionmakers cannot alone prove pretext,”

nor can “decisionmakers’ statements or actions outside of the decisionmaking process.” EEOC

v. Ford Motor Co., 782 F.3d 753, 768 (6th Cir. 2015) (en banc). Finally, we have noted that

“rumors, conclusory allegations and subjective beliefs . . . are wholly insufficient evidence to

establish a claim of discrimination as a matter of law.” Mitchell v. Toledo Hosp., 964 F.2d 577,

585 (6th Cir. 1992).

Smith offers affidavits from others who say that Chief Brian Byrd told them that he had

self-demoted from his position as Deputy Chief of the fire department in 2016 because of

rampant racial discrimination in the fire department. He has also submitted an affidavit from

Professor Earl Murry, who wrote that Mayor Kapszukiewicz admitted to being “aware[] of the

race discrimination problems in the TFRD.”

Assuming that these statements are admissible, they are insufficient to establish that

discriminatory animus motivated the Academy’s decision to dismiss Smith. Allegations of racial

discrimination by unknown persons against Chief Byrd several years before Smith entered the

Academy are too abstract and attenuated to indicate that Smith’s supervisors at the Academy

were motivated by discriminatory animus in their actions against Smith. See O’Donnell, 838

F.3d at 726. Furthermore, Smith has not pointed to any specific remarks by his superiors in the

Academy that would raise an inference of discrimination against Smith personally or against

African Americans in general. A complete lack of detail leaves us unable to “evaluate factors

affecting the statement[s’] probative value, such as . . . ‘the purpose and content of the

statement[s], and the temporal connection between the statement[s] and the challenged

employment action.’” Ercegovich, 154 F.3d at 357 (quoting Ryder v. Westinghouse Elec. Corp.,

128 F.3d 128, 133 (3d Cir. 1997)). “[C]onclusory allegations and subjective beliefs” are simply

not enough to establish pretext. See Mitchell, 964 F.2d at 585.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 14

One allegation in the declaration submitted by Murry deserves close scrutiny. Murry

describes an August 2018 meeting between himself, Hitt, and newly appointed Chief Byrd at

Hitt’s home. According to Murry, Hitt described his observations of the June 2018 testing to

Byrd and explained “in detail how the training provided was inadequate and the testing was

objectively unfair” and designed to assure Smith’s failure. Murry then says that, at that meeting,

“Chief Byrd agreed with Battalion Chief Hitt’s observation that what was done to Major Smith

especially in June 2018 was racially motivated and that the TRFD Academy’s actions were

hostile, discriminatory and in Chief Byrd’s opinion racially motivated.” So on Murry’s telling of

the story, Byrd admitted that what happened to Smith was racially discriminatory. Byrd has filed

an affidavit to the contrary, explaining that once he “reviewed the file materials relative to

Smith’s training and ultimate termination from the academy,” he “found absolutely no indication

of any unfair treatment visited upon him because of race or any reason.” So what do we make of

Murry’s declaration?

To begin, we may assume without deciding that these out-of-court statements, made by a

named party, would be admissible as non-hearsay under Fed. R. Evid. 801(d)(2). But Smith did

not argue before the district court that Murry’s recollection of Byrd’s statement constituted

evidence of racial discrimination; and so the district court did not address it. Although Smith

relies on that portion of Murry’s declaration on appeal, it is our job “to review the case presented

to the district court, rather than a better case fashioned after an unfavorable order.” Armstrong v.

City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (alterations adopted) (quoting Barner v.

Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005)). Smith’s failure to present this

argument to the district court forfeits it for appeal. Id.

Beyond the forfeiture, close scrutiny of the declaration shows that Murry’s statements are

of little effect. As explained above, Hitt was present only at the June 2018 testing and training so

he could not speak to the entire course of training and testing that Smith had received; and,

critically, he could not compare that training and testing to that received by Smith’s classmates.

Byrd likewise had no firsthand knowledge of the training or testing, as Byrd neither witnessed

nor was involved in Smith’s training, testing, or termination; he did not become Chief of the

TFRD until August 2018, two months after Smith’s June tests. So even if Byrd agreed at the

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 15

August meeting with Hitt’s view that Smith’s June testing was racially discriminatory, as Murry

recollects, Byrd’s agreement was premised on Hitt’s telling of the events; and Hitt had no way to

assess the critical question whether Smith was treated worse than his peers. As a result, Murry’s

declaration does not establish pretext.

Smith has not shown either that “similarly situated non-protected employees were treated

more favorably,” Jackson, 814 F.3d at 776, by being given an easier vertical ventilation test or

that his having failed the test was not the “true reason” for his dismissal. Id. The district court

did not err in granting summary judgment to defendants on Smith’s discrimination claims under

Title VII, § 1981, and Ohio law.

2.

Because Smith’s discrimination claims fail, his civil rights conspiracy claims fail as well.

“Section § 1985(3) prohibits a conspiracy ‘for the purpose of depriving either directly or

indirectly, any person or class of persons of the equal protection of the laws or of equal

privileges and immunities under the laws.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291,

314 (6th Cir. 2005). To prove a § 1985(3) claim, a plaintiff must show, among other things, that

“a person is . . . deprived of any right or privilege of a citizen of the United States.” United

Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 829 (1983). Smith cannot prove

this because, as we explained above, his discrimination claims fail. See Beztak Land Co. v. City

of Detroit, 298 F.3d 559, 569 (6th Cir. 2002) (dismissing § 1985(3) conspiracy claim where there

was no underlying substantive violation).

“Section 1986 establishes a cause of action against anyone, who has knowledge of a

conspiracy under § 1985, and ‘having power to prevent or aid in preventing the commission of

the same, neglects or refuses so to do.’” Radvansky, 395 F.3d at 314. Because Smith’s § 1985

claim fails, so does his § 1986 claim. See id.

C.

Smith’s other claims fare no better. He first argues that the district court erred in

dismissing his § 1983 claim. Citing out-of-circuit precedent, he alleges that when defendants

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 16

told the media that he was dismissed from the Academy for failing to meet state requirements,

they deprived him of a “property/liberty interest in his good name[,] which has been ‘sullied.’”

This court has consistently recognized that “reputation alone is not a constitutionally

protected liberty or property interest.” Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999)

(citing Paul v. Davis, 424 U.S. 693, 701 (1976)). A person’s “good name, reputation, honor, or

integrity” is not constitutionally protected against defamation where “the employer has alleged

merely improper or inadequate performance.” See Crosby v. Univ. of Ky., 863 F.3d 545, 555

(6th Cir. 2017) (quotations and citations omitted). That is exactly what defendants did here

when they said that Smith “could not successfully complete the ventilation portion of his

physical test” and that he was dismissed from the Academy for being “unable to meet the state’s

standards.” As the district court noted, any dispute over whether the standard was actually a

state standard, as opposed to an Academy standard, does not sufficiently “affect[] Smith’s

reputation” to be actionable. See id. at 556 (stating that, to be actionable, “statements made in

the course of . . . termination” must impose “[a] moral stigma such as immorality or dishonesty

capable of seriously damag[ing] his standing and associations in his community or that [would]

foreclose[] his freedom to take advantage of other employment opportunities” (first alteration

added) (citation omitted)). Smith’s § 1983 claim accordingly fails.

Smith’s intentional infliction of emotional distress claim also fails. To prove that claim

under Ohio law, Smith must show that “(1) defendants intended to cause emotional distress, or

knew or should have known that their actions would result in plaintiff’s serious emotional

distress, (2) defendants’ conduct was extreme and outrageous, (3) defendants’ actions

proximately caused plaintiff’s emotional injury, and (4) plaintiff suffered serious emotional

anguish.” Miller v. Curie, 50 F.3d 373, 377 (6th Cir. 1995). Smith alleges that defendants

caused him emotional distress by “stripping [him] of his lifelong dream simply because of his

race” and “publicly impugn[ing] him and destroy[ing] his good character.” But, as we explained

above, defendants did neither. The district court did not err in granting summary judgment on

this claim.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 17

III.

Finally, Smith argues that the district court erred in denying his request for additional

discovery. We review a district court’s denial of a motion for additional discovery for abuse of

discretion and will reverse only if we are “left with a definite and firm conviction that the court

below committed a clear error of judgment.” Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 422

(6th Cir. 2020) (citation and quotation marks omitted). Among other factors, we consider “how

the discovery would affect the ruling below.” Id.

Smith asked for additional discovery on state and Academy testing requirements. He

argues that defendants had changed their position about whether the Academy vertical

ventilation test, which must be performed on a roof, is also a state requirement. He says that this

“precondition issue” is relevant to his discrimination claim because if it is not a state

requirement, defendants discriminated against him by requiring it and not allowing him to simply

take the state certification exam on a simulator. As explained above, whether the Academy

rooftop exam is also a state requirement is irrelevant to Smith’s discrimination claim. It is

undisputed that all recruits, including Smith, were required to pass the Academy’s exam on a real

roof. Additional discovery on the state requirements would have no effect on his discrimination

claims because it could not help show that he was treated differently from any other recruit. The

district court did not err in denying Smith’s request for additional discovery.

***

We AFFIRM.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 18

_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_______________________________________________________

HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I agree

that the district court properly granted summary judgment to the City of Toledo on Smith’s

§ 1983 and intentional-infliction-of-emotional-distress claims and properly denied Smith’s

motion for additional discovery. However, because there is a genuine dispute of material fact

about whether the City dismissed Smith from the academy because of his race, I would reverse

the grant of summary judgment on Smith’s discrimination and conspiracy claims.

Smith was given three more chances to pass the vertical-ventilation test in June after the

City failed him on the March and May tests. The district court stressed that the May and June

tests were opportunities no other recruit had ever received, and seemed to suggest that any

discrimination on those tests was irrelevant, although it also found insufficient evidence of

discrimination. Smith persuasively argues, and the majority appears to accept, that Smith can

meet his burden if he shows that the June tests were materially harder than the March tests or the

training was materially worse than received by other recruits. As Smith argues, Defendants

cannot offer him another round of tests—and thus condition his continued employment on

passing those tests—and then fail him for discriminatory reasons. Further, it is undisputed that

Smith’s tests in May were timed in a manner that made it more difficult for Smith to pass the

tests—i.e., he was given a test that was more difficult to pass even putting aside the dispute about

the slope of the roof.

Although the majority recounts evidence supporting the City’s contention that the June

training and tests were fair, and similar to what other recruits received, Smith presented

sufficient evidence to the contrary to go to a jury. Professor Earl Murry’s affidavit details that

there were concerns about the fairness of prior tests administered to Smith, and that to address

any potential issues, Battalion Chief David Hitt would be there to observe the June training and

tests. Hitt observed the training and tests and concluded that they set Smith up to fail. The

majority summarizes this evidence but says it is immaterial because Hitt did not observe the

training or tests of other recruits in Smith’s class. At the summary-judgment stage, however, this

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 19

evidence should not be summarily cast aside. Hitt’s many years of experience in training

recruits—as an instructor, as director of the training program, as a recent mentor to trainees, and

as a supervisor designated to oversee the fairness of Smith’s training and testing process—and

many years of experience at the department make him well-suited to determine whether the

training was adequate and the testing was fair. Hitt’s testimony and report indicate that the

training Smith received was plainly inadequate because it did not attempt to address Smith’s

problem areas or provide necessary instruction, such as instructor demonstration or allowing

Smith to practice the vertical-ventilation skill and receive feedback. He also explained his

opinion that the testing conditions were unfair, not only because the slope of the roof was too

steep and there was limited space on the roof to conduct the test, but also that the instructors did

not respond appropriately when Smith’s chainsaw failed, i.e., they did not stop the time on

Smith’s test or identify or correct the cause of the equipment failure, “allowing the time to run

out on [Smith].” R. 42-2, PID 933.

Smith made similar complaints. He acknowledged that he received training but echoed

Hitt’s comments that he did not receive many opportunities to actually practice the skill. R.

43-10, PID 1797 (“I did not ever have one time between May even up to June to, besides the

simulation one, they were doing the remediation, I only had one practice during that time.”). He

confirmed that the roof was steeper than the March test. Id. at PID 1786 (“I couldn’t even stand

up and cut on this roof because it had a steeper pitch.”).1 And he complained that the equipment

was faulty but that the instructors did not stop the time. Given Hitt’s testimony that in his

opinion and experience the training and testing conditions were inadequate, and Smith’s

testimony—based on personal knowledge from being on the roof in March—confirming these

points, Smith presented a genuine dispute of material fact about whether his training and testing

conditions were similar to those of his white colleagues, and whether the decision to terminate

him for failing the tests was pretext for unlawful discrimination. See Maj. Op. at 8

(“An employer cannot claim to dismiss employees according to a neutral criterion, like passing a

test, if it actually gives different and harder tests to some employees because of their race.”

1Although not specific as to the degree of the disparity between the March and May/June roofs, Smith’s

testimony that he was unable to stand up and cut could allow a reasonable jury to infer that the difference in slopes

was material.

No. 20-3434 Smith v. City of Toledo, Ohio, et al. Page 20

(citations omitted)); Strickland v. City of Detroit, 995 F.3d 495, 514 (6th Cir. 2021) (“This Court

has long held that evidence of such unjustified differential treatment is sufficient ‘to withstand

summary judgment on the issue of pretext’ and is itself evidence that the ‘proffered explanation

. . . may not have actually motivated [the employer’s] conduct.’” (alterations in original) (quoting

Dews v. A.B. Dick Co., 231 F.3d 1016, 1023 (6th Cir. 2000))).

Additionally, the evidence presented of past and ongoing discrimination in the

department, some pertaining to others but some pertaining to Smith specifically, strengthens the

inference of discrimination. Chief Brian Byrd allegedly stated to Murry that he believed Smith’s

termination was racially motivated. And, since 2014, 80% of the recruits who were dismissed

from the Academy were African American, and the remaining 20% were Hispanic, despite

African Americans making up a minority of the class.2 This further supports an inference of

discrimination.

Accordingly, I would reverse the grant of summary judgment on Smith’s claims under

Title VII, 42 U.S.C. § 1981, and Ohio Rev. Code § 4112.02. Because the dismissal of the

conspiracy claims relied solely on the failure of his discrimination claims, I would reverse the

grant of summary judgment on those claims as well.

2In Smith’s class, there were three African-American recruits out of a total of 30.