Judge drops lawsuit by Cincinnati fire official; but suit by former sanitation worker goes forward

Judge drops lawsuit by Cincinnati fire official; but suit by former sanitation worker goes forward
Posted at 5:00 AM, Sep 10, 2018
and last updated 2018-09-10 08:47:35-04

CINCINNATI -- A federal judge dismissed the lawsuit of a high-ranking Cincinnati fire district chief who claimed he was wrongfully passed over for a promotion after he brought issues of wrongdoing to the former city manager's attention.

Last month, U.S. District Judge Timothy Black dismissed the lawsuit filed by Raffel Prophett, the District One chief in the Cincinnati Fire Department. Prophett filed his appeal on Aug. 31.

Prophett sued the city and former City Manager Harry Black last October, accusing Black of abuse of power as well as violating his rights to free speech and due process. It was one of several lawsuits filed last year by employees against the city and Black, claiming he had a pattern of professional retaliation.

Prophett joined the department as a firefighter in 1988 and was promoted six times through 2011.

In 2015, Prophett wrote to Harry Black asking for an investigation after another fire department official was accused of wrongdoing, but Black "ignored the matter," the lawsuit states. Later in the year, Prophett received an anonymous call alleging another fire department official "appeared to be on duty under the influence of alcohol."

After Prophett told his supervisor, the official was placed on leave pending an investigation, the lawsuit states. Prophett applied for the assistant fire chief job in April 2016 and again in July 2017. Despite being the most qualified applicant, he didn't get the job, according to his lawsuit.

Prophett's suit claims he heard from several people that Harry Black called him a "troublemaker," and Black had the final decision on the promotion, according to the lawsuit. However, the judge dismissed Prophett's claim that he deserved the job.

"First, Mr. Prophett has not set forth any authority to support his argument that the most 'qualified' candidate is entitled to be promoted to assistant fire chief," Judge Black wrote in his Aug. 3 order. "As a matter of law, no person, not even the most qualified candidate, has a constitutionally protected property interest in employment in the unclassified position of assistant fire chief."

As part of the lawsuit, Prophett was seeking to be promoted to assistant fire chief and awarded backpay and other damages.

The judge also found that Prophett had a duty to report any fire department violations to Black, so his complaints are considered part of his "official duties," and not protected by the First Amendment as a private citizen. The judge ruled this was not a matter of public concern, but rather an internal office dispute.

"The complaint does not allege that defendants terminated Mr. Prophett's employment or that defendants made public, stigmatizing statements about Mr. Prophett," the judge wrote in his order.

In late 2017 and early 2018, six former and current city employees, including Prophett, filed federal lawsuits accusing the city and Black, and in some cases other department heads, of abusive behavior and retaliation.

The other cases are still pending. City lawyers have denied the allegations.

In August, Judge Black declined to dismiss the lawsuit filed by Gary Colorez, a former supervisor at the city's department of public services. He alleges former department director Maraskeshia Smith and Harry Black fired him because he started digging into what he believed was widespread waste and fraud.

Brian Gillan, an attorney for Colorez, said he is taking Black's deposition in October for the case.

Black resigned in April, just minutes before Cincinnati City Council held a meeting intended to oust him.

City leaders announced last Friday that they would pay Black an additional $370,000 in an agreement that ends his threats to sue the city.

The new deal makes Black's total buyout worth $544,00 in cash, plus benefits. In return for the lump-sum $370,000 payment, Black cannot sue the city and agrees to help the city defend itself in any lawsuits where Black is named.