this is a civil appeal from the just because it's grant of summary judgment thereby dismissing the interest complaint in its entirety the primary issue we submit for this court's consideration which has ramifications beyond the specific case is whether it is legally permissible for an employer in this case the city of toledo to racially discriminate against an employee in this case major smith while the employee is undergoing remedial training  testing allowed by the employer after the employer arguably had the right to terminate the employee for failure to meet a performance standard required for continued employment the district court determined in this case such remedial training in testing was nothing more than a bonus an opportunity not allowed to employees that is simply a quote unquote special accommodation and therefore actual evaluation of whether there was discriminatory treatment during the remedial training in testing it is not necessary as the employer could simply have fired the employee in the st instance as detailed in the briefs major smith is an african american he was a fire  trainee at the city of toledo fire and rescue that are in training academy and as such easily a member of a legally protected class the purpose of the the academy is to train recruits in the skills necessary to become firefighters what do we do let me ask you this question what do we do in this area it's an interesting situation about the remedial testing and whether they had they weren't under an obligation i guess to do it they did it anyway i would think maybe you can't then intentionally discriminate against somebody but what how does a crime a face a case where was he otherwise qualified at that point given that he had already failed and he could have been kicked out of the program i mean what why is he otherwise qualified at that point in time at that point in time to honor the the qualification was a qualification the called case the standard was the qualification to be a member of you can't me he had satisfied that he had he was physically academically qualified to be a recruit the purpose of the training academy is to train those people who have already been established as qualified and as the court has repeatedly rule since it's a simple decision incline you can't use the fact of a failure of a test to assert disqualification that's what that that's what the city has conflated here and i think that goes to the essence of your question so as long as he was qualified you go back to the original qualification which was he was a legitimate recruit or was qualified to be a recruit met met all the requirements to go through their training and so we just revert back to that and and and don't worry about the fact briefs that provision deals with the testing at the fire academy level in specifically provides that you have to pass an academic wound and you have to pass a physical skills practical skills they call it now and in that code section it's pacifically states that if a trainee fails an evolution which is a series of three tests within that evolution he shall be  returned to the beginning you know that so that he can be trained and tested it was test as this was a specifically addressed by battalion chief hit the town in chief it was the former head of training camp me for a number of years he testified that while he was there they recognized and followed the mandate that it's a training academy the only reason in his helmet but that code when it says shall be for mediated or whatever  the with the city reported to do in this case which is you know you take a recruit outside of that evolution and you put him back to that evolution the training academy consists of training at two levels for states europe occasion and to qualify to become a member of a probationary firefighter in the city of in this case the city of toledo fire and rescue department so the code is that not only they don't just retake it and the chief pit was very specific about this that the standards required the state standards in the national standards for firefighting training animals require that there be a the evidence that he was given more training in then he said that he had had enough that there was that is in the record that was an expression of frustration but he didn't say it and he went forward but after the training if you're talking about the june evolution instance where that that comes up the rd round of three tests he was then subjected to absolutely unfair and unsafe testing protocols chief it was put there because of his call of occasions and explained here to your what happened we know what happened in june we know specifically what happened in june he was put on a roof that according to chief it was that point a frontline battalion chief in charge of a fire house fighting fires every day he wouldn't put a seasoned firefighter on that ro because he couldn't do the vertical ventilation cut safely they put major smith on that route we know that there were not proper spotters proper spotters were evidenced by pictures of the training that occurred in march you have a spotter at the top of the ladder and you have a spotter an instructor directly behind the recruit who is there to assure that it is they're wearing these full full gear with ventilation masks we're al more familiar with what it's like to wear a mask these are full going to lation masks with air tanks on their back so the steeper the route in this route was very steep hording to cheap it that's the evidence in the record  steeper than the rooms that the other records are marked it's an interesting flipping of the evidence that the district court does we know specifically what happened and what the conditions were in june for the court to conclude that these were the same kinds of conditions that the white caucasian in the other african american recruit was subpoenaed subjected to in march would mean that the court was looting that the city had subjected the recruits in march to an unsafe roof condition to state that they had put their trainees through the same conditions meaning no sp behind at the you know directly behind the recruit we know that's not true because we have pictures from march showing that there were problems are spotters we have chief hits actually their patients which are not contradict it in are actually training they sent major smith up on a group that had so many it was such a a bad roof to begin with that they wanted him to make this cut and this is the fruit steep roof without proper spotters from his non dominant side his right hand it they wanted him to cut from the left at the edge of a roof there is no evidence that anybody was subjected to these kinds of conditions in march  you raise the yes actually this was specifically i can give you the site ation i can find it during the break but you'll find the the issue directly addressed during the oral argument on the motion for judgment judge and harry asked when i said brought up the spotters he's with you have any proof of that we brought out the city's pictures they produced in their briefs their exhibits pictures of the training in march so it's in that area and that's a relatively short trans flunked in march and which he should have been terminated then solely to denigrate him and to otherwise treat him horribly because of his race and i think it's important to remember that the people supposedly a lot in this conspiracy are all protected if you look at the notes if you look at the testimony from smith smith himself he basically says over and over again that he can't eat can't do he's not confortable on that rough the best thing we could have done for him at the end of the day was terminate you know whether you like it or not finding fire is a dangerous occupation this is a crucial skill you want individuals who can go on that rough decision themselves it requires a person willing to run into burning buildings and to be confident and that's when nervous a kickstand can't start chain saw after nine attempts and there's no evidence not case whatsoever that the conditions for the additional opportunities were different in the white people  and i think you you know the missing star on the conspiracy because there's literally there's no certainly no direct evidence he says there is there isn't there's really no circumstantial evidence of you know going to know soon the rough testing you look at was smith's said he can't case is everybody also is required to do it i mean that's a that's an uncontested fact and it's a very important test and if you look at the notes from it was there any evidence that any other crew or anybody had ever i understand the head but we're here we're hearing argument so well what i'm what i'm wondering is what i mean surely it can't be the case that just because you're going to give somebody extra chances that you can then rig the test right you have to give that person or basically the same test i mean i understand that it can't be on the same ro because you're using real grooves so you have to give them more or less roughly the same tests and so that's what what i'm really interested in is what evidence and  from i believe might have been pink um whoever was up there on the last chance last opportunity and i think it's important to get maybe a little back to him never said steeper than any other you you know between may and june he's given more training does he know and then i'm going to test on this june report does he ever say like hey that roof was too steep can i have a different kind of roof now he never sa pitt testified that in his time they would have trained until they wouldn't put them up to test any recruits until they were ready to pass so they were sure that they were going to pass and it seems like the policy well st of all i don't think any policy change whatsoever and i think if you listen to that comment but yet it doesn't make any sense on its face i mean you have to have the statue says you take tests and they pass or they  location as well there's no comparison whatsoever and again he failed not because of the spot or lack of a spot or because of his you know inability to do the test i mean that's so you know there's your claim is that they're wors evaluation of the records relative to the march evolution and he specifically testifies that he reviewed those march documents compiled by the city and found that there were discrepanc in the test the major had head to head indicated to him that there were problems with the instruction inconsistent struck and told at one time to do it this way next time he different way a lot of confusion he reviewed it he hit review member concerned which two tests achieved here was the observer appointed observer for the june evolution he st parts it's a three d page report he talks about his evaluation of records for the march evolution and he talks about his observations ok evolution but then after that you said and someone agree that there should be another test yes he went to s when he looked at the records in early may the records of the march tests he went to chief scientist who said yes he deserves to be he brought those to the chief's attention and said no we're still going to fire now this is why there's a pencil so i'm sorry you're confusing me i know i mean i thought you said just one second listen to my question i thought you said that hi agreed there should be further testing but i don't think that's correct i think what you said after that is that this was after the march test but make let me explain what's missing in this is that and what was rushed over by council there were three events march middle of may and then june going to the earlier judges question about  in the roof on the june test those that was the same room that that major tested on in may those cuts were made during the may testing they brought him back to the same roof it's a tight roof there wasn't a lot of uncut space left so not only was it too steep too steep for a seasoned firefighter but the locations that were available to major in june were tucked were very constricted that's why they put the ladders up the one time to have him in june make a cut on his left side at the edge of a roof as it was the only uncut area available and that was that they chose with regard to the sequence and santiago said no we're going to stick by even though there were problems in march he basically got retest that he failed we're not going to we're going to stick with our term and our terminations decision which is what they made in director at that point in time it was determined that major would be given a rd opportunity so to the judge's question did they know that major have some idea in may that he was going to be retested on the same roof in professor cameras were in and the affidavits a politics hudson tim ross and the testimony of cheapish was evidence that the city itself through the safety director and the mayor acknowledged publicly that there were problems with discrimination in the fire department and that discrimination was being perpetrated the rectally against meijer smith that was to directly talked a admitted to and that's why they did the jew evolution that's why they appointed it to observe the june evolution and if you want the best evidence a pre no one ever read read his report before he was terminated they had their pretext he failed counsel charles just says it's simple it's a group it's a test everybody takes a test on  route they don't want to deal with the details of the tests are this  evidence of the conditions that have occurred in march if nothing else this is a summary judgment is that the decision as to what were the actual facts requires a win to be evidence in determinations of credibility who to us he was somewhat nondescript he ultimately says that he recognized as tara says you know that nobody measures these routes he says that he thought they were it was you know and steep but he's a trainee he's not experienced in oh is this too steep for this kind of a maneuver he had now he says it was too steep but the judge disregards that the judge district court judge looks at the pictures i addressed this in my itself evidences that this was different conditions cheviots report details that the protocol for doing this type of training and testing is dictated by national and state certification standards in the to the city puts on their own twist on certain things however you still have to meet those those all of those conditions of consistency and fairness and he says