The members of Omnibus a group of current and retired firefighters filed a lawsuit against the Winston Salem Fire Department on February 11, 2021.
In the lawsuit, Omnibus contends that the current Fire Chief Trey Mayo, engaged in racist activities that caused a detriment to members of color over an extended time period. In addition to Chief Mayo, the lawsuit also listed four fire captains who engaged in racists rhetoric through social media posts and in person training activities.
Accordingly the lawsuit shines the light of truth on the bad apples on their misdeeds that are too often swept under the rug. The lawsuit also provides a forum for those of every race and background by which to stand on the side of fairness and equality.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PLAINTIFFS’ ORIGINAL COMPLAINT
COMES NOW Plaintiffs Thomas Penn, Jr. (“Penn”), Delbert Hairston,
Jr. (“Hairston”), Gerrod Hardy (“Hardy”), Ricky Brown (“Brown”), and Eddie
Forrest (“Forest”) (collectively “Plaintiffs”), by and through undersigned
counsel, and in support of their causes of action allege as follows:
PARTIES
1. Each plaintiff is an individual citizen of the State of North
Carolina who currently or recently worked for the City of WinstonSalem
Fire Department (“WSFD”).
THOMAS PENN, JR.,
DELBERT HAIRSTON, JR.,
GERROD HARDY, RICKY
BROWN, and EDDIE
FORREST,
Plaintiffs,
vs.
CITY OF WINSTON-SALEM
and WINSTON-SALEM FIRE
CHIEF WILLIAM MAYO, an
Individual,
Defendants.
CIVIL ACTION NO. ___________
1
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 1 of 20
2. Defendant City of Winston-Salem (the “City”) is a municipality
organized under the laws of the State of North Carolina.
3. Defendant William Mayo (“Chief Mayo”) is an individual, and the
Chief of the Winston-Salem Fire Department. Chief Mayo is the
highest-ranking employee in the Winston-Salem Fire Department.
JURISDICTION AND VENUE
4. This action arises under United States Code, Title 42, § 1981 et
seq.
5. Venue properly lies in this Court because all acts and omissions
giving rise to this claim (specifically the employment decisions
addressed herein) took place in Forsyth County, North Carolina, which
is in the District and Division in which suit has been filed.
FACTS AND GENERAL ALLEGATIONS
Overview
6. The City is a municipality in North Carolina. It is the fourth
largest city in North Carolina, with an estimated population of
approximately 250,000.
7. According to the United States Census, the City’s population is
46% European-American (non-Hispanic/Latino) and 34.8% AfricanAmerican.
2
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 2 of 20
8. The City operates WSFD, a professional, full-time fire
department of nearly four hundred (400) employees employed at
nineteen (19) stations. Contrary to expectations, WSFD employees are
overwhelmingly European-American, with African-Americans typically
comprising approximately 15% of the workforce. Moreover, the
percentage of African-Americans who hold senior, officer-level positions
rarely exceeds 10%.
9. As with most professional (as opposed to volunteer) fire
departments, most employees are assigned to Stations, where the
employees live and work while on duty, including eating, sleeping,
bathing, and socializing.
10. Prior to joining the WSFD, applicants must pass a series of tests
and evaluations. Those include a multi-week program called “Rookie
School,” where recruits are trained and tested on a variety of tasks and
protocols. Only after successfully completing Rookie School can a
recruit be assigned to a Station.
11. WSFD has a decades-long history of discrimination, harassment,
intimidation, and retaliation against African-American employees. As
described below, African-Americans are (a) discouraged from applying
for positions, (b) more rigorously tested, scrutinized, and criticized
3
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 3 of 20
during Rookie School, (c) harassed, belittled, and demeaned, at
Stations, (d) denied promotional opportunities, and (e) targeted,
transferred, and ostracized if they complain about the discriminatory
behavior.
12. African-American WSFD employees have complained to WSFD
and City administrators, to no avail. Those complaints have been
ignored or, worse, the basis for less favorable assignments and
treatment.
13. In instances when a complaint has been found to be valid, the
offending WSFD employee has been transferred to a new station, not
subject to any more meaningful discipline. The systemic protection of
employees guilty of harassment and discrimination has created and
fostered an environment where federally-protected rights are violated
with near impunity.
14. Lacking any redress or other remedy, Plaintiffs now file this suit
alleging race discrimination, harassment, and retaliation.
Failure to Prevent and Correct Discriminatory Behavior
15. Contrary to the requirements outlined by the U.S. Supreme
Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and
Burlington Industries v. Ellerth, 524 U.S. 742 (1998), the City and
4
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 4 of 20
WSFD have failed to take steps to prevent or correct discriminatory
behavior in WSFD.
16. Specifically, Chief Mayo directed a complaint of discrimination
and harassment be referred to a Chaplain, rather than investigated.
17. Chief Mayo, when confronted with an instance when a noose was
tied during a training class, directed that the person move to a different
topic, specifically stating “Next topic” rather than address the event.
18. Chief Mayo has openly stated that he is “tired of hearing about
diversity.”
19. When Plaintiff Captain (Ret.) Ricky Brown publicly discussed his
experiences of discrimination and harassment with WSFD, Chief Mayo
approached Plaintiff Brown and whispered into Plaintiff Brown’s ear
that Plaintiff Brown “should be ashamed” for his support and
participation in opposing discriminatory and harassing behavior at
WSFD.
20. WSFD historically has not required attendance at diversity,
inclusion, or similar training events for WSFD firefighters.
21. Officers and supervisors, who observe or learn of offensive,
harassing, and/or discriminatory behavior, have failed to address the
5
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 5 of 20
events or report the events to more senior staff with WSFD and/or the
City.
22. African-American firefighters are told that complaints will “go
nowhere” or otherwise will not result in any action, and thus are
discouraged from raising complaints or pursuing grievances against
European-American firefighters and officers.
23. In a separate lawsuit filed in this Court by Plaintiff Thomas
Penn, Plaintiff Penn alleged racially discriminatory and harassing
behavior by the City and WSFD. This case was settled. Subsequent to
settlement of his claim, Plaintiff Penn was denied an opportunity to use
his annual leave allotment as was customary for WSFD firefighters.
24. In another instance, an African-American firefighter complained
about his treatment when he returned to work from active military
service. His complaint to the City Attorney’s Office under the
Uniformed Services Employment and Reemployment Rights Act
(USERRA) was ignored. When a European-American firefighter made
a similar request when he returned from active duty, the City and
WSFD granted his request. When the African-American firefighter
learned of the discriminatory treatment and reiterated his complaint to
6
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 6 of 20
the City Attorney’s Office, he was summarily dismissed because the
statute of limitations for a USERRA claim had passed.
25. When African-American firefighters make complaints, often
WSFD transfers the complaining firefighter and leaves the alleged
offender in place. Often, these African-American firefighters are
transferred to less desirable fire stations within WSFD.
26. When African-American firefighters complain about
discrimination and/or harassment, they also face retaliation and
retribution in the form of rumors that the African-American firefighter
is “untrainable” or “lazy.”
27. When African-American firefighters approach a supervisor with a
request to file a grievance or other complaint, the African-American
firefighter is asked if he is sure he wants to do so, because doing so may
adversely impact his career and future promotional opportunities.
28. During investigations involving African-American firefighters as
witnesses, European-American firefighters, including Chief Mayo, often
contact African-American firefighters off-duty to discuss the
investigation. Such off-duty conversations are informal, rather than
part of the formal investigation process, and are perceived by the
African-American firefighters as efforts to intimidate them.
7
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 7 of 20
29. The absence of formal complaints, the refusal by the City and
WSFD to address complaints, and the lack of discipline resulting from
filed grievances and complaints has created an environment where
certain WSFD firefighters and officers have been emboldened to the
point where they act with impunity and have an aura of being
“untouchable.”
30. When the City commissioned a “Climate Study” to assess the
working conditions at the WSFD, the Climate Study first was falsely
labeled an investigation. It is not
31. When the Climate Study commenced, WSFD selected specific
individuals to be interviewed. Shockingly, WSFD selected its key
offenders, harassers, and discriminators to speak to the climate within
the WSFD.
32. Under the circumstances, it came as no surprise when WSFD
failed or refused to select aggrieved employees to speak to the climate
within the WSFD during the Climate Study. To further suppress the
voices and experiences of its African-American firefighters, WSFD
failed and refused to advise its African-American employees that they
could volunteer to be interviewed for the Climate Study.
8
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 8 of 20
Specific Instances of Discriminatory Behavior
33. In one instance, Michael Chapman (“Chapman”), a WSFD
firefighter, attended a class on ropes and knots taught by Captain John
Lindholm (“Lindholm”). During the class, Chapman demonstrated how
to tie a noose. Chapman showed the noose to Darius Johnson, an 1
African-American firefighter, and asked Johnson if he knew what it
was. There is no work-related use or purpose for demonstrating how to
tie a noose. Lindholm took no action against Chapman in response to
his offensive behavior. Instead, Chapman became an Instructor shortly
thereafter.
34. WSFD Captain Lindholm, Battalian Chief Daryl Sawyer, and
Chief Mayo were made aware of Chapman’s racially-offensive conduct.
They did nothing in response. In a meeting when this issue was raised,
Chief Mayo specifically directed the conversation move to a new topic.
35. Captain Dwayne Jernigan repeatedly and openly said “Nigger”
while on duty and at the fire station. Nothing has been done in
response.
A noose is a symbol strongly connected with the violent lynching of African-Americans, particularly in the 1
southeastern portion of the United States.
9
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 9 of 20
36. WSFD regulations prohibit promoting employees who are under
investigation or recently received a reprimand, within 365 days.
Despite that, WSFD promoted Jason Gore, a European-American, in
direct contravention of WSFD promotion procedures.
37. In 2019, Captain Eddie Forest filed a racial discrimination
complaint against Assistant Operations Chief Jerry Hardisson and
Division Chief Robert Wade. Chief Mayo allegedly conducted an
investigation, but failed (or refused) to interview key witnesses.
38. Captain Forest expressed dissatisfaction with Chief Mayo’s
investigation and requested a hearing at a higher level. As of the filing
of this lawsuit, Captain Forest continues to wait for a formal hearing
on his complaint.
39. Michael Walker, Jr. was an African-American recruit in Rookie
School he was denied an opportunity to take the state certification
exam and, as a result, he could not complete Rookie School or become a
WSFD firefighter. The basis for denying Mr. Walker an opportunity to
complete Rookie School was his failure to tie a specific knot, despite the
fact that knots and ropes are rarely used by WSFD firefighters. In
another instance, Brian Reid successfully tied required knots multiple
times and was required to tie the knots repeatedly. Once he failed to
10
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 10 of 20
tie the knot correctly, despite previously doing so moments earlier, his
failure was used as a basis for dismissing him from Rookie School.
Conversely, when European-American recruits fail to pass critical
Emergency Medical Technician (EMT) exams, they are provided
assistance in order to complete Rookie School.
40. In 2010, Captain Dwayne Jernigan’s wife, Captain Kelly
Jernigan, wrote a response piece for FireEngineering.com, titled Less
Diversity Is Needed in the Fire Service. Shockingly, Captain Dwayne
Jernigan assigned his wife’s inflammatory and racially-offensive piece
as required reading for a WSFD employee.
41. Sabrina Stowe, an African-American employee, filed a grievance
about pay inequities. While the inequality she alleged was confirmed,
her grievance was denied and she was denied compensation.
European-American employees, like Captain Christopher Belcher and
former Administration Chief Marlene Kostyrka, however, have received
multiple pay increases to compensate them for pay inequities.
42. When Captain Belcher failed to respond to a call, he suffered no
discipline. When Captain Grady Armstrong (African-American) was
accused of the same violation, which was determined to be unfounded,
he was demoted two positions.
11
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 11 of 20
43. When Captain Willie Griffin was cited for Driving While
Impaired, WSFD demoted him two positions from his non-driving
Captain position to the rank of Firefighter. By contrast, EuropeanAmerican
Engineer David Pollard was cited, upon information and
belief, three separate times for Driving While Impaired. Because his
position did involve driving, Pollard was granted sick leave and then
permitted to retire with no discipline or reprimand.
44. When Engineer Perez Wardlow reported to his new station in
2018, he found a gorilla mask on his desk. Despite his repeated
requests and complaint, no investigation ever occurred. In other
instances, European-American firefighters have placed monkeys on
helmets belonging to African-American firefighters.
45. In mid-2020, Captain Belcher taught a combination online and
in-person class on dealing with protestors during the protests in
response to policy brutality. In the in-person class, Captain Belcher
stated that he could solve the problem during his drive home through
downtown; his proposed solution was to use his vehicle to assault the
protestors. This is particularly offensive in light of the events in
Charlottesville, Virginia in August 2017, when James Alex Fields, Jr.
similarly drove a vehicle into an anti-racism protest. Mr. Fields killed
12
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 12 of 20
one person and injured dozens of others, resulting in his guilty plea to
29 federal hate crime charges.
46. African-American firefighters routinely are harassed for their
failure to adhere to the WSFD dress code. European-American
firefighters are not counseled or disciplined for similar or worse
offenses under the WSFD dress code.
47. The City has implemented an Equal Employment Opportunity
policy. That policy requires all employees enjoy equal standing and
equal opportunity. Specifically, the policy creates a right for employees
to use the grievance process and an obligation by the City to investigate
complaints. The reality is the policy is rarely enforced, complaints
often are ignored, and offenders suffer no discipline.
48. For example, in June 2020, Firefighter Jonathan McDaniel
confirmed that he was uncomfortable as the only African-American
firefighter at his station, and comments were being made by Captain
Shore, Chief Mayo was advised of the concern and suggested the
Department Chaplain speak to Firefighter McDaniel. The issue,
however, was not one of religious connotation or importance but,
rather, race discrimination.
13
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 13 of 20
49. Captain Shore has a history of leaving African-American
firefighters at the station when taking calls. These incidents have
occurred on at least four (4) occasions under Captain Shore. Captain
Shore’s supervisors have been made aware of these incidents, without
any discipline or reprimand. Instead, Captain Shore has been
identified as the candidate to assume responsibility for the Firefighters’
Retirement Fund.
50. The City also has a policy against making harassing or
threatening statements while at work. WSFD employees, however,
routinely post threatening, harassing, and offensive statements on
social media while at work. Such unprotected and offensive speech
includes:
a. In a public conversation, Marcia Dudley, a Lowe’s Home
Improvement employee, suggested moving African-Americans
“back to africa [sic] or wherever they all come from” and
African-Americans “should be thankful that SLAVES were
brought over.” In response, Captain Kevin Shore responded
favorably to the post and Firefighter Jacob Pardue further
responded that “they’re [African-Americans] ignorant of their
history.” Lowe’s terminated Marcia Dudley for her public
14
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 14 of 20
comments; WSFD and the City did nothing in response to
Shore and Pardue’s public support for her comments.
b. Captain Kelly Jernigan suggested authorities unleash German
Shepherds in response to Black Lives Matter protests,
resurrecting tactics deployed by police against civil rights
protestors in the 1950s and 1960s.
c. Firefighter Matthew King posted that the National
Association for the Advancement of Colored People (NAACP),
Black Entertainment Television (BET), the Hispanic
Scholarship Fund, and even the Democratic Party represent
racism in the United States to the same extent the
Confederate flag does. In response, Captain Charles Goins
(African-American) corrected Matthew King, noting the
connection between the Ku Klux Klan and use of the
Confederate flag symbolism. Firefighter King refused to
acknowledge his publicly-displayed racially-offensive post,
reaffirming his belief.
d. Captain Edward Scott Blair, during anti-police brutality
protests in Charlotte, publicly posted that he was going to
Charlotte for “supper” and bringing his own “silverware.” The
15
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 15 of 20
silverware to which he referred is three handguns pictured
with the post.
e. During a similar protest in Greensboro, a private citizen
suggested carrying a firearm for such incidents. Captain Blair
later posted that the “saint is a very good platform for such
situations.” The “saint” is commonly used to refer to the
assault rifle AR-15. Captain Blair further explained his
comment that the “saint” is “Compact… easily concealed and
deployed…” and has a “muzzle break with 50% recoil turn
down.” To avoid any doubt as to his reference, Captain Blair
then noted that he was “talking like a ‘2nd amendment’ dude.”
51. Regardless of any policy implemented at any time, WSFD maintains a
strict policy related to conduct unbecoming of an officer. Such
statements, posted for public view, comment, and consumption,
including by African-American subordinates of these officers, are
offensive to the staff the above-listed officers supervise and manage.
The City and WSFD have taken no action in response to these posts.
CAUSES OF ACTION
Cause of Action No. 1: Race Discrimination
in violation of 42 USC Sec. 1981
16
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 16 of 20
52. Plaintiffs reassert and, by this reference, incorporate the
allegations contained in paragraphs 1 through 33, above, as if fully set
forth herein.
53. Plaintiffs have been subjected to unequal pay, unequal
treatment, unequal promotion and hiring opportunities, and unequal
discipline in their work with the City.
54. Such discriminatory behavior has been the result of racial bias
and discrimination within the City, specifically at WSFD. But-for the
race of the Plaintiffs, such behavior would not have occurred.
55. As a result of Defendant’s actions, Plaintiffs suffered and
continue to suffer damages and Plaintiffs hereby sue.
56. Plaintiffs further seek their attorneys’ fees incurred in bringing
this action.
Cause of Action No. 2: Retaliation
in violation of 42 USC Sec. 1981
57. Plaintiffs reassert and by this reference incorporate the
allegations contained in Paragraphs 1 through 38, above, as if fully set
forth herein.
17
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 17 of 20
58. Plaintiffs have complained and supported the complaints of
others in opposition to the racially discriminatory conduct fostered and
tolerated by the City and WSFD.
59. In response to their complaints and support for the complaints of
others, Plaintiffs have been ostracized, more heavily criticized,
scrutinized, and disciplined, denied promotional opportunities, and
received less favorable or desirable job assignments and transfers.
60. As a result of Defendant’s actions, Plaintiffs suffered and
continue to suffer damages and Plaintiffs hereby sue.
61. Plaintiffs further seek their attorneys’ fees incurred in bringing
this action.
JURY TRIAL DEMAND
62. Plaintiffs demand a trial by jury on all issues of facts and
damages raised in this case pursuant to Rule 38(b) of the Federal Rules
of Civil Procedure.
PRAYER FOR RELIEF
WHEREFORE, cause having been shown, Plaintiffs respectfully
requests that, upon final hearing, the Court award Plaintiffs judgment
against Defendant for:
18
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 18 of 20
a. Back pay and front pay in a precise amount to be determined by
the jury;
b. Compensatory damages against Defendant as a consequence of
Defendant’s unlawful actions, in a precise amount to be
determined by the jury;
c. Actual damages;
d. Prejudgment and post-judgment interest;
e. Reasonable attorneys’ fees, expenses and costs, as specifically
authorized by statute, to be calculated by the Court pursuant to
the established procedures and precedents; and
f. Such other relief as the Court shall deem just and proper.
Dated: November 25, 2020.
Michael E. Coles, Lead Counsel
TX State Bar No. 24007025
THE COLES FIRM PC
4925 Greenville Ave., Suite 200
Dallas, Texas 75206
Telephone: (214) 443-7860
Facsimile: (972) 692-7145
mikec@colesfirm.com
Miguel A. Cuadra Jr.
NC State Bar No. 50329
The Law Offices of Miguel A.
Cuadra PLLC
315 Spruce St. North, Suite 275
Winston-Salem, NC 27101
19
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 19 of 20
Telephone: 336.695.7760
Facsimile: 336.722.5680
macj@miguelcuadralaw.com
ATTORNEYS FOR PLAINTIFFS
20
Case 1:21-cv-00123 Document 1 Filed 02/11/21 Page 20 of 20
Recent Comments