A federal judge has dismissed claims of racial discrimination filed by current and former Winston-Salem firefighters almost a year ago, although the court has left the door open for the firefighters to re-file their lawsuit.
Judge Catherine Eagles on Wednesday granted motions by the city and Fire Chief William “Trey” Mayo to dismiss the lawsuit that five men filed claiming multiple incidents of racism had occurred in the city’s fire department over a number of years.
Eagles adopted the recommendation of U.S. Magistrate Judge Joe Webster to dismiss the case, but she also dismissed the complaints “without prejudice,” meaning that the firefighters can choose to re-file their case at some future point.
Webster, in his recommendation to dismiss the case, said the firefighters had failed to sufficiently show facts that backed up their claims. Most of the alleged racist incidents did not involve the firefighters who had filed suit, Webster found.
Thomas Penn Jr., one of the suing firefighters, said in response to the dismissal that the group is still gathering evidence of city misdeeds and that the “stories will be told in the coming weeks.”
The lawsuit was filed by Penn, Delbert Hairston Jr., Gerrod Hardy, Ricky Brown and Eddie Forest. The men were among members of Omnibus, a group of firefighters who made allegations of racism against members of the fire department over a period of months from the summer of 2020.
In its protests, the group called for the dismissal of Mayo and other department personnel it fingered as having engaged in acts of racism. The city didn’t take that action, but did bring in consultants to take the racial temperament of the department. The consultants concluded that the department was not racist as a whole, but said that allegations of individual acts of racism showed the need for more diversity training.
The firefighters filed their suit about a month after the study came out.
In their lawsuit, the firefighters repeated many of the allegations they had publicized earlier, including an incident in which someone allegedly left a gorilla mask at the desk of a Black firefighters, and comments on social media that those filing suit found offensive.
In addition to claims of racism, the lawsuit alleged the city had created a hostile work environment for Black firefighters, and had retaliated against those who complained.
In recommending dismissal, the magistrate judge (a judge who assists the lead judge in federal court) essentially said that to sue, the complaining firefighters needed to be the actual victims in the incidents they recounted, but that in most cases they were not.
In two instances identified by the magistrate judge as allegations that two of the plaintiffs personally experienced retaliation, the judge said the lawsuit did not make the case that the alleged retaliation met the required legal standards.
City attorney Angela Carmon declined to comment. Penn, speaking for the Omnibus group, said the firefighters “are not surprised or discouraged by the court’s decision.”
“Anyone who has been watching this case, and we know that people as high as the mayor himself has been, knew that this decision was coming,” Penn said. “The judge only said that we need more people who have directly suffered discrimination and harassment in the fire department to come forward. Their stories are not enough. Their names need to be attached. So that is what we will do.”
Penn said Omnibus has gotten “more evidence and more examples of the racism in the Winston-Salem Fire Department.”