Suit by Cincinnati Captain To Proceed Despite Dismissal of Four of Seven Counts

The US District Court for the Southern District of Ohio has dismissed four of seven counts in a discrimination lawsuit brought by a Cincinnati fire captain. The captain, Janos Roper, will be allowed to proceed on the three remaining counts.

Captain Roper filed suit in 2022 claiming he was passed over for promotion on account of his race, a disability, and because he reported a supervisory district chief for “unethical and unlawful behavior.” The decision identifies Captain Roper as being “Asian, African American, and Caucasian.” His disability is not identified.

Quoting from the complaint.

  • Roper’s complaint contains seven counts: (1) hostile work environment on the basis of racial discrimination; (2) failure to promote based on racial discrimination; (3) hostile work environment on the basis of disability discrimination; (4) failure to promote based on disability discrimination; (5) retaliation; (6) violation of Ohio’s whistleblower statute, R.C. § 4113.52; and (7) violation of public policy.
  • Defendant City of Cincinnati moves to dismiss each count.
  • Roper brings two hostile work environment claims, one for racial discrimination, another for disability discrimination.
  • The City is correct that Roper failed to exhaust his administrative remedies.
  • To bring a hostile work environment claim, a plaintiff needs to point to harassment that “unreasonably interferes with his work performance and creates an objectively intimidating, hostile, or offensive work environment.”
  • Roper’s EEOC charge asserts that he had been passed over for promotions because of his race, disability, and in retaliation against his protected complaints,” among other things.”
  • But not getting promoted is a significant distance from enduring workplace harassment that unreasonably interferes with his work performance or harassment that creates an objectively intimidating, hostile, or offensive work environment.
  • Roper fails to meet that standard. Thus, Roper has failed to show that he exhausted his administrative remedies tied to his claims for hostile work environment.
  • Roper accuses the City of failing to promote him because of his race and his Disability [Counts 2 and 4].
  • Roper has pled enough facts to state a plausible claim.
  • He belongs to protected classes as a racial minority and someone who has an actual or perceived disability. And, even though he was qualified for promotions, the City passed him over.
  • Other non-minority employees received promotions instead of him.
  • He also challenges the integrity of the very tool that determined eligibility: the examination itself.
  • These pleadings carry him past the motion-to-dismiss stage.
  • [In Count 5], Roper complained to HR of various forms of discrimination.
  • Afterward, the City allegedly took adverse actions against him. This included passing him over for promotions.
  • He says these actions were retaliatory.
  • Roper is not just challenging the way the exam was administered; he is challenging the fallout of complaining about it. As long as promotions were available, he faced retaliation.
  • His complaint states this clearly: he has continued to endure retaliation by being continually passed over for promotions, among other things.
  • Roper has thus pled facts that state a claim for retaliation.
  • Roper also sues the City for violating Ohio’s whistleblower statute, RC. § 4113.52.
  • The City allegedly falsified government documents and told him to act unlawfully.
  • He claims that he repeatedly made oral and written reports about the City’s unethical and unlawful behavior. In return, the City refused to promote him.
  • The City attacks this claim, arguing that Roper did not comply with RC. § 4113.52.
  • It maintains that Roper’s accusation of “illegal conduct in the workplace” fails to meet the whistleblower statute’s pleading standard.
  • Employees must “strictly comply with the dictates of RC. 4113.52” to unlock its protection.
  • [T]he whistleblower statute requires him to first orally report a violation, then file a written report.
  • So, here, Roper’s single email communication falls short of strictly complying with the statute.
  • Lastly, Roper sues the City for violating public policy (Count 7).
  • He anchors this claim in various Ohio statutes.
  • The Sixth Circuit has gone on record to say that “Ohio courts do not recognize policy claims for failure to promote.”
  • This Court similarly declines to extend Ohio law to include a failure to promote as an actionable underlying claim for tortious violation of public policy.
  • Roper’s public policy claim lacks any foundation in law.
  • Accordingly, the Court GRANTS the motion to dismiss as it relates to Count 7.

Here is a copy of the decision:

Here is a copy of the original complaint:

Earlier lawsuit from 2018.

Decision on 2018 lawsuit.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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