Federal Court Rules Against Cincinnati Captain Over TV Channel Dispute

A US District Court has granted the City of Cincinnati’s motion for judgment on the pleadings in a case brought by a fire captain who claimed he was the victim of sexual harassment and retaliation after he complained to a district chief about a “film” firefighters were watching on the station television.

Captain Janos Roper claims that in December, 2017, personnel were watching a “graphic, offensive, and prurient film” that he found to be “repugnant” and “degrading to women.” When firefighters refused to change the channel, he changed it himself and then complained to a district chief. The district chief “refused to take a report regarding the incident.” Captain Roper claims that supervisors then began retaliating against him “fabricating stories, making accusations, and verbally harassing” him.

Captain Roper filed suit last year in US District Court for the Southern District of Ohio, claiming sexual harassment and retaliation. Last week, US District Court Judge Susan J. Dlott adopted the recommendations of US Magistrate Karen L. Litkovitz ruling in favor of the city.

In summarizing the crux of the case, Magistrate Litkovitz concluded:

  • Accepting as true the allegations in plaintiff’s complaint … the Court concludes that plaintiff fails to state a plausible claim for relief under Title VII.
  • Plaintiff has not provided sufficient factual content for the Court to reasonably infer that defendant’s conduct was severe or pervasive enough to create a sexually hostile or abusive work environment.
  • Plaintiff alleges a single, isolated instance of being subjected to a sexually explicit movie in the firehouse dining room.
  • Plaintiff considered the content of the movie to be offensive and objectionable.
  • He alleges that he voiced his objection to the movie and requested the channel be changed. When no one changed it, plaintiff changed the channel himself.
  • This single, brief, and isolated instance of conduct falls far short of the objectively severe or pervasive conduct needed to state a claim for relief for a sexually hostile work environment as a matter of law.
  • Plaintiff has failed to allege facts giving rise to a reasonable inference that the firehouse was a workplace “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive so as to alter conditions of [his] employment and create an abusive working environment.”
  • There are no allegations that plaintiff was exposed to a movie with sexual content on more than one occasion; plaintiff has not alleged that defendant or its employees subjected him to any other actions or conduct which he found offensive; and there are no allegations of any physically threatening or humiliating actions taken by any of defendant’s employees against plaintiff so as to give rise to an inference of a sexually hostile work environment.
  • While the Court has no doubt that plaintiff personally found the movie Any Given Sunday to have objectionable sexual content, the facts alleged in the complaint and OCRC charge, accepted as true, do not describe circumstances creating an objectively hostile or offensive work environment.
  • Isolated or single incidents of exposure to sexually charged conduct are not sufficiently pervasive to meet the objective requirement of a Title VII sexual harassment claim based on a hostile work environment.
  • In addition, plaintiff has not alleged that the sexually offensive material was directed towards him or based on his gender. This weighs against a finding of an objectively hostile work environment.
  • Conduct directed at others in the workplace is considered less hostile because it is not linked to plaintiff’s gender.

Magistrate Litkovitz also dealt with Captain Roper’s retaliation claim. It is fairly common for retaliation claims to prevail even though the underlying discrimination claim fails. As explained by Magistrate Litkovitz, the caveat is that the underlying discrimination claim must be based on a good faith belief that the conduct in question actually constituted discrimination:

  • Title VII prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment practice by [Title VII].
  • An employee who complains about a hostile work environment need not actually prove that the employer’s alleged misconduct was, in fact, unlawful under Title VII to prevail on a retaliation claim.
  • Nonetheless, the plaintiff must have a reasonable, good faith belief that the defendant has committed an unlawful employment practice to state a claim for retaliation.
  • While complaints of a sexually hostile work environment would generally be protected conduct, the Court concludes that no reasonable person would believe that the single incident in question constituted unlawful sex harassment based on a sexually hostile work environment under the circumstances set forth in plaintiff’s complaint.
  • It is not objectively reasonable for employees to believe that every complaint they make in the workplace is protected activity under Title VII.
  • Here, no reasonable employee would believe that being exposed to a sexually explicit movie in an employee dining room where other employees were present on a single, isolated occasion for a brief period of time created a sexually hostile work environment under Title VII. As plaintiff has failed to plausibly allege the objective component of the protected activity requirement of his retaliation claim, defendant’s motion to dismiss plaintiff’s retaliation claim should be granted.

Here is a copy of Magistrate Litkovitz’s decision

Here is Judge Dlott’s ruling:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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