Robert Whittaker was 46 years old when he entered the Howard County Department of Fire and Rescue Services Training Academy in January 2018, making him the oldest trainee in his class. The approximately six-month Academy combined academic coursework with practical exercises designed to prepare trainees for firefighting duties. Whittaker successfully completed all required academic instruction, but Academy staff documented concerns about his performance during practical exercises and his behavior under stress. During the Academy, Captain Douglas Welsh, the head instructor for Whittaker’s class, also told him, “you don’t do half bad for an old guy.”
The Department’s concerns included Whittaker’s hesitancy during ladder exercises, disorientation during a maze exercise, lack of fireground speed, and difficulties performing skills under stress. Counseling reports and internal memoranda also described instances in which he talked back to instructors or became “frustrated and insubordinate.” Although Whittaker ultimately received certificates of completion for Firefighter I and Firefighter II, an assistant chief recommended his dismissal, writing that his “overall proficiency and behavior do not embody the principle to which this Department holds its prospective academy class graduates.” Whittaker was terminated from the Academy and Department shortly before graduation.
Whittaker sued Howard County under the Age Discrimination in Employment Act (ADEA), alleging that he was terminated because of his age. He relied in part on Welsh’s “old guy” remark and a November 2019 Facebook post by a Department captain who had not been directly connected to the Academy expressing opposition to hiring older firefighters. A federal magistrate judge granted summary judgment to the County, finding that Whittaker had not established a prima facie case of age discrimination and, alternatively, had not shown that the Department’s stated reasons for terminating him were pretextual. Whittaker appealed, but did not challenge the ruling that he lacked direct evidence of discrimination.
The Fourth Circuit affirmed. Because Whittaker relied on circumstantial evidence, the Court applied the McDonnell Douglas framework. To establish a prima facie case of age discrimination, Whittaker had to show that he was at least 40 years old, suffered an adverse employment action, was performing his job at a level that met the Department’s legitimate expectations, and that the position remained open or was filled by a similarly qualified applicant outside the protected class. The parties disputed whether Whittaker satisfied the third requirement. In evaluating his performance, the Court emphasized that “[i] t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.”
The Court concluded that no reasonable jury could find Whittaker was meeting those expectations. Counseling reports, memoranda, and emails documented concerns with his performance in core firefighting skills, as well as instances of insubordination in stressful situations. Whittaker pointed to testimony from fellow trainees who believed his performance was satisfactory, but the Court found their assessments did not establish whether management believed he was meeting its expectations. His successful academic record was likewise insufficient. The Department expected trainees to perform tasks at a “mastery level,” and academic success did not establish satisfactory performance of practical firefighting skills under stress.
Because Whittaker failed to show that he was meeting the Department’s legitimate expectations, he could not establish a prima facie case of age discrimination. The Fourth Circuit therefore did not address the remaining elements of the McDonnell Douglas analysis and affirmed summary judgment for Howard County.
Whittaker v. Howard County, Maryland, No. 23-2019, 2026 WL 2446304 (4th Cir. Aug. 20, 2026).