Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 1 of 12. PageID #: 13 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION WILLIAM T. PHELPS, 464 Chestnut Drive Berea, OH 44017 CASE NO. JUDGE Plaintiff, vs. CITY OF BEREA, 11 Berea Commons Berea, OH 44017 COMPLAINT WITH JURY DEMAND and KENNETH ADAMS, in his personal and official capacities, 11 Berea Commons Berea, OH 44017 Defendants. NATURE OF THE ACTION 1. This is a civil-rights action brought for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e) et seq., for violations of the Ohio Civil Rights Act, Ohio Revised Code 4112 et seq., and under 42 U.S.C. 1983 for denial of the equal protection under the Fourteenth Amendment. This complaint alleges that the City of Berea, Ohio, acting through its agent, Safety Director Kenneth Adams, retaliated against William Phelps by failing to promote Mr. Phelps after he opposed Director Adams s discriminatory, race-based promotion practice of giving preferential treatment to minority candidates. PARTIES 2. Plaintiff William T. Phelps is employed as a Senior Firefighter with the Berea Fire Department. Mr. Phelps is African-American. He resides in Berea, Ohio. Page 1 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 2 of 12. PageID #: 14 3. Defendant City of Berea, Ohio is a municipality located within the boundaries of the Northern District of Ohio. Berea is Plaintiff s employer. Berea is vicariously liable for the acts of its agents, including Defendant Kenneth Adams. 4. Defendant Kenneth Adams is the Safety Director of the City of Berea. Mayor Cyril Kleem appointed Director Adams to his position effective August 9, 2010. Director Adams is African- American. He is a member of the Vanguards of Cleveland, an organization that promotes the advancement of minorities in the fire service. He is being sued in both his official and personal capacities. His office is in Berea, Ohio. JURISDICTION AND VENUE 5. Jurisdiction over federal claims under 42 U.S.C. 1983 and 1988, which provides for attorney and expert fees for vindication of civil-rights claims, is asserted under 28 U.S.C. 1331 and 1343. 6. Jurisdiction over state claims is asserted under 28 U.S.C. 1367. 7. This Court has personal jurisdiction over Defendants and venue is proper in this Court under 28 U.S.C. 1391 because the relevant events took place within the Court s jurisdiction. FACTUAL BACKGROUND 8. Mr. Phelps began working for the City of Berea Fire Department as a Firefighter in 1994. In 1998, he was promoted to Senior Firefighter. 9. On August 9, 2010, Director Adams became the Safety Director for the City of Berea. Under Ohio law, a municipality s Safety Director is appointed by the mayor and has exclusive management and control of safety forces. At all relevant times, Director Adams was acting under color of state law. Page 2 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 3 of 12. PageID #: 15 10. In mid-august of 2010, Director Adams met with each of the separate shifts of firefighters. Director Adams said he would let Chief Ted Novak handle the upcoming round of promotions because Director Adams did not yet know the firefighters. 11. On September 22, 2010, the promotion test for firefighters was administered. There were two positions coming open due to retirements: a Captain and a Lieutenant. Lieutenant Brand Eisenhardt and Senior Firefighter Mickey Herreid tied for first on the exam. Firefighter Brett Stainslaw was third. Lieutenant Mark Kaufold was fourth. Mr. Phelps was fifth. Senior Firefighter Terrell Ledwell was sixth. Mr. Phelps and Mr. Ledwell are African-American. The other four candidates are white. 12. In early November of 2010, Chief Novak and Assistant Chief Dan LaRocco interviewed the top three candidates for each position. Messrs. Herreid, Stainslaw, and Phelps were interviewed for the Lieutenant position (Messrs. Eisenhardt and Kaufold were already Lieutenants). 13. On November 10, 2010, Chief Novak conveyed to Director Adams that the Chief and Assistant Chief recommended Lieutenant Eisenhardt be promoted to the Captain s position and Senior Firefighter Herreid be promoted to Lieutenant. 14. On November 29, 2010, Director Adams conducted promotional interviews. He interviewed Messrs. Eisenhardt, Herreid, Stainslaw, and Phelps. 15. During the interview, Director Adams said to Mr. Phelps, If I promote you first, you need to be able to deal with the situation of being promoted ahead of two candidates who scored higher than you. Then again, if I don t promote you, people in the community will ask me why didn t I promote the brotha? 16. On December 1, 2010, Director Adams promoted Lieutenant Eisenhardt to Captain and Mr. Phelps to Lieutenant. Chief Novak called Mr. Phelps and asked him to meet in the Chief s office, Page 3 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 4 of 12. PageID #: 16 where the Chief informed Mr. Phelps of his promotion. Mr. Phelps accepted the promotion, believing it was based purely on merit. 17. On December 2, 2010, Chief Novak posted the promotions via memo. 18. On December 3, 2010, Chief Novak told Mr. Phelps to call Director Adams. Mr. Phelps called Director Adams at approximately 9:24 a.m. During that call, Director Adams claimed that following the interviews, the candidates were tied and that Mr. Phelps s minority status (being African-American) put him ahead of the other candidates despite their higher scores on the exam. Director Adams requested that Mr. Phelps meet him (Adams) on December 4, 2010 outside the City of Berea. 19. Mr. Phelps had no interest in accepting a promotion based on illegal, race-based considerations. He wanted the promotion only if it was based purely on merit. 20. Later that morning, at approximately 11:14 a.m., Mr. Phelps called Chief Novak. Mr. Phelps declined the promotion and explained why. He asked Chief Novak to inform Director Adams that Mr. Phelps had no reason to meet with Director Adams outside the City of Berea the following day as Director Adams had requested. 21. That evening, Mr. Phelps placed a letter respectfully declining the promotion in Chief Novak s mailbox. In the letter, Mr. Phelps requested to remain on the promotion-eligibility list. 22. Later that night, at approximately 7:36 p.m., Director Adams called Mr. Phelps. The conversation lasted approximately 23 minutes. Mr. Phelps explained to Director Adams that he (Phelps) had submitted a letter to Chief Novak declining the promotion and asking to remain on the promotion-eligibility list. In a threatening tone, Director Adams said he could remove Mr. Phelps from the promotion-eligibility list. Mr. Phelps responded that doing so would prove that the promotion he was declining was not based on merit but on an illegal, race-based preference. Director Adams told Mr. Phelps that Mayor Kleem would like to meet with Mr. Phelps about his Page 4 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 5 of 12. PageID #: 17 decision. Mr. Phelps explained that his decision was final, but agreed to call the mayor out of courtesy and respect. 23. On December 6, 2010, Mr. Phelps had an approximately 13-minute phone call with Mayor Kleem. Mayor Kleem repeated Director Adams s position that the three candidates had tied after the interviews. Mr. Phelps informed Mayor Kleem about Director Adams s minority comments and explained that was why Mr. Phelps had declined the promotion. As of (at the latest) December 6, 2010, the City of Berea was on notice of the race-based preferences employed by Director Adams in the first round of promotions. 24. Following Mr. Phelps s phone call with the Mayor, Director Adams and Chief Novak had a conversation about Director Adams s threat to remove Mr. Phelps from the promotion-eligibility list. This conversation occurred in the Police Chief s office in front of the Police Chief. Chief Novak advised Director Adams not to take Mr. Phelps off the list. 25. Director Adams promoted Mr. Stainslaw to the Lieutenant position that Mr. Phelps declined. 26. The next round of promotions was scheduled to take place in May and June, 2011, based on the expected retirements of Lieutenant Kevin Kennedy and Captain Greg Lobas. 27. On April 8, 2011, in preparation for the promotional interviews, Union President Robert Magee asked Director Adams via email if a silent union representative could sit in on future promotional interviews (chiefly to prevent the type of exchange that occurred between Mr. Phelps and Director Adams regarding Adams s desire to promote the brotha ). A month later, on May 10, 2011, Director Adams responded to Magee s email and refused to allow a union representative to observe the interviews Director Adams would conduct. 28. Before May 26, 2011, Chief Novak advised Mr. Phelps to agree to disagree about what went on before if he wanted Director Adams to promote him (Phelps). Page 5 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 6 of 12. PageID #: 18 29. On May 26, 2011, Mr. Phelps had his second promotional interview with Director Adams. At that time, Mr. Phelps was the second-ranked candidate on the promotional exam. During the 20- minute interview, Mr. Phelps described for Director Adams the educational activities Mr. Phelps had completed in preparation for promotion since the previous interview. Director Adams asked if anything had changed with Mr. Phelps personally. Mr. Phelps explained that he still would not accept a promotion based on race. The two proceeded to debate the issue (which would not have occurred if a silent observer had been permitted to attend). Director Adams told Mr. Phelps that he couldn t tell Director Adams whom to promote. Mr. Phelps said that was not what he was doing; he was only explaining his reasoning for rejecting a position based on illegal, race-based preference. 30. Later that afternoon, Director Adams promoted Mickey Herreid to Lieutenant effective June 28, 2011. 31. Mr. Phelps was qualified for the promotion he did not receive. 32. A week or so later, the next Lieutenant position became available. Mr. Phelps was then the first-ranked candidate on the promotion exam. 33. At Director Adams s request, Chief Novak informed Mr. Phelps that because he had just interviewed for the position, he could submit a letter stating that he understood the interview process and the duties of the position and would forego a third interview. Mr. Phelps submitted the requested letter to Director Adams and copied Chief Novak. 34. On June 10, 2011, Mr. Phelps was again passed over for the position of Lieutenant. Director Adams promoted Terrell Ledwell effective June 28, 2011. Mr. Ledwell was ranked below Mr. Phelps on the promotion exam. 35. Mr. Phelps was qualified for the promotion that he did not receive. 36. On July 31, 2011, Union President Robert Magee wrote to Mayor Kleem to express concern over how one of our firefighters was treated during the recent promotional process at our Page 6 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 7 of 12. PageID #: 19 department. William Phelps was passed over for promotion during the third round of the process (and his test score was ranked #1 at the time of that phase). It certainly appears that it was a retaliatory measure by our Safety Director, Mr. Ken Adams, because William did not accept his promotion when it was offered to him during the first round of promotions. The letter conveyed an understanding that Mr. Phelps had provided Mayor Kleem with specific details on why he [Phelps] decided to decline the promotion and observed How could a promotional candidate go from a top candidate, to not even being considered, is questionable. President Magee asked Mayor Kleem to continue to take an interest in this matter. 37. On August 3, 2011, President Magee followed up on his July 31 letter to Mayor Kleem with another letter. In this second letter, President Magee conveyed that William initially accepted the promotion to Lieutenant, believing it was based on merit, on November 30, 2010, when notified by Chief Novak. President Magee again noted the specific discrimination that Mr. Phelps was opposing ( being a minority (African-American) candidate placed him ahead of the other two candidates ) and reiterated Mr. Phelps s reasons for declining the first promotion ( due to the fact that his race was the deciding factor in him receiving the promotion. ) And President Magee stated that [t]he Berea Firefighters Association believes William is now being retaliated against by Safety Director Adams, for opposing a promotional practice where his race gave him an unfair advantage and discriminatory advantage over two higher ranking candidates. President Magee asked to discuss the matter with the Mayor and that Mayor Kleem take appropriate action. 38. On August 15, 2011, President Magee and Union Treasurer Pat McCarthy, on behalf of the union, met with Mayor Kleem, Safety Director Director Adams, Chief Novak, and Law Director James Walters regarding the discrimination and retaliation against Mr. Phelps. The City took no steps to remedy the discrimination and retaliation against Mr. Phelps. 39. Mr. Phelps timely filed a charge with the EEOC on August 25, 2011. Page 7 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 8 of 12. PageID #: 20 40. On September 17, 2011, he received notice of his right to sue. 41. All conditions precedent to filing suit have been met. COUNT 1 Retaliatory failure to promote under 42 U.S.C. 2000e 51. Plaintiff incorporates all previous allegations into this paragraph as if they were fully restated. 52. It is an unlawful employment practice to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual s race. 53. Race was a motivating factor in the decision to promote Mr. Phelps in December 2010. Because Director Adams admitted to Mr. Phelps that race was a motivating factor in the decision to promote him, Mr. Phelps declined the promotion. He communicated his reasons and opposition to discrimination to Director Adams. He also communicated the reason why he declined the promotion (Director Adams s unlawful use of a race-based preference) to the Mayor, the Fire Chief, and other members of the Berea Fire Department. In declining the promotion and spreading the word about why he had done so, Mr. Phelps opposed the unlawful employment practice. 54. It is an unlawful employment practice for an employer to discriminate against an employee because he has opposed an unlawful employment practice. 55. Defendants intentionally and maliciously discriminated and retaliated against Mr. Phelps by failing to promote him after he opposed an unlawful discriminatory practice, i.e., the use of illegal, race-based preferences in promotions. 56. As a direct and proximate result of Defendants unlawful conduct, Mr. Phelps has suffered and will continue to suffer economic and non-economic damages for which Defendants are liable, including but not limited to pain and suffering, the loss of salary, wages, and benefits, and other terms, privileges, and conditions of employment. Page 8 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 9 of 12. PageID #: 21 COUNT 2 Retaliatory failure to promote under Ohio R.C. 4112(I) 57. Plaintiff incorporates all previous allegations into this paragraph as if they were fully restated. 58. Under Ohio law it is unlawful employment practice to discriminate in any manner against any person because he opposed an unlawful discriminatory practice. 59. Defendants intentionally and maliciously discriminated and retaliated against Mr. Phelps by failing to promote him after he opposed an unlawful discriminatory practice, i.e., the use of illegal, race-based preferences in promotions. 60. As a direct and proximate result of Defendants unlawful conduct, Mr. Phelps has suffered and will continue to suffer economic and non-economic damages for which Defendants are liable, including but not limited to pain and suffering, the loss of salary, wages, and benefits, and other terms, privileges, and conditions of employment. COUNT 3 Denial of Equal Protection under the Fourteenth Amendment under 42 U.S.C. 1983 61. Plaintiff incorporates all previous allegations into this paragraph as if they were fully restated. 62. Safety Director Adams has exclusive authority over the safety forces in terms of employment practices, including promotions. Director Adams is an official whose decisions represent the policies, customs, and practices of the City of Berea. 63. When Director Adams assumed the position of Safety Director, he implemented a policy, custom, or practice of employing illegal, race-based preferences in employment decisions, including promotions, to advance his goal of promoting minorities in the fire service. 64. With purpose or intent to discriminate, Director Adams, acting under color of state law, discriminated against Mr. Phelps by affording him an illegal, race-based preference in employment. Page 9 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 10 of 12. PageID #: 22 65. With purpose or intent to discriminate, Director Adams, acting under color of state law, retaliated against Mr. Phelps by refusing to promote Mr. Phelps after he opposed the unlawful discrimination. 66. These policies, customs, and practices of promoting minorities over whites, regardless of qualification, and retaliating against an opponent of those unlawful policies, implemented by Director Adams and tolerated by the City of Berea, led to the deprivation of Mr. Phelps s federally protected right to equal protection. 67. In the alternative and without waiving the foregoing, if Director Adams did not set the policies, customs, or practices of the City of Berea, the City, despite being on notice, deliberately ignored and consciously never acted when confronted with Director Adams s egregious and obviously unconstitutional conduct. 68. As a direct and proximate result of the unconstitutional denial of equal protection, Mr. Phelps has suffered damages for which Defendants are liable. PRAYER FOR RELIEF For the reasons stated above, Plaintiff respectfully requests the following relief from the Court. A. Declare that Defendants acts and conduct constitute violations of Title VII, Ohio law, and the Fourteenth Amendment to the United States Constitution; B. Enjoin Defendants from retaliating against Mr. Phelps by failing to promote him, and order Defendants to place Mr. Phelps in the next Lieutenant position to become available; C. Enter judgment in Mr. Phelps s favor as to all claims for relief; D. Award Mr. Phelps full compensatory damages, economic and non-economic, including, but not limited to, damages for pain and suffering, mental anguish, emotional distress, humiliation, and inconvenience that Mr. Phelps has suffered and is reasonably certain to suffer in the future. E. Award Mr. Phelps punitive damages for the intentional and malicious violation of Title VII, Ohio law, and his constitutional rights; F. Award pre-judgment and post-judgment interest at the highest lawful rate; Page 10 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 11 of 12. PageID #: 23 G. Award Mr. Phelps his reasonable attorneys fees (including expert fees) and all other costs of this suit; H. Award all other relief in law or equity to which Mr. Phelps is entitled and that the Court deems equitable, just, or proper. JURY DEMAND Plaintiff demands a trial by jury on all issues within this Complaint. Respectfully submitted, THE CHANDRA LAW FIRM, LLC /s/ Ashlie Case Sletvold Subodh Chandra (0069233) Donald Screen (00440770) Ashlie Case Sletvold (0079477) 1265 W. 6 th St., Suite 400 Cleveland, OH 44113-1326 216.578.1700 Phone 216.578.1800 Fax Subodh.Chandra@gmail.com Donald.Screen@gmail.com Ashlie.Sletvold@gmail.com Attorneys for Plaintiff William T. Phelps Page 11 of 12
Case: 1:11-cv-02374-DCN Doc #: 2 Filed: 11/03/11 12 of 12. PageID #: 24 TO THE CLERK: REQUEST FOR SERVICE Please issue the Summons and Complaint and serve the Complaint by certified mail to Defendants listed in the Complaint s caption at the addresses listed above, making return according to law. /s/ Ashlie Case Sletvold One of the attorneys for Plaintiff William T. Phelps Page 12 of 12