CPD lawsuit: Judge issues order as white lieutenants object to black colleague's promotion - WXIX

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CINCINNATI (WXIX) - A federal judge declined Sunday to stop the Cincinnati Police Department, at least for now, from promoting a black lieutenant to captain ahead of two white lieutenants who scored higher than him on the promotion test despite a recent decision from a different federal judge that these race-based policies are unconstitutional and must stop.

Two veteran Cincinnati police lieutenants sued the city and Mayor John Cranley back in September over the upcoming captain promotions.

Andrew Mitchell and David Schofield say in their lawsuit the city and mayor plan to continue Cincinnati’s “unlawful” race-based hiring and promotion practices at the detriment to their careers and income.

Captain promotions are rare, and they may not get the chance again before the current promotional eligibility list expires in May 2022, their suit states.

Sunday’s decision shows U.S. District Court Judge Michael Barrett clearly is not taking a stance on the issue of race-based promotions yet.

The judge did make it clear in his order, however, that he didn’t feel the two white lieutenants had shown they would suffer enough harm to block the black lieutenant’s promotion right now.

Mitchell and Schofield could still be promoted before the current promotion eligibility list expires, the judge wrote.

Their attorney swiftly filed an emergency request Sunday for a 14-day stay in the case to give them time to appeal to a higher court.

Judge Barrett hasn’t issued a decision on that, according to the court docket.

The white lieutenants’ suit came days after a different federal court judge, Susan Dlott, ruled the city’s race-based and sex-based hiring and promotional goals in the police department are unconstitutional and must be removed from a 40-year-old consent decree that requires a certain percentage of minorities and women.

Judge Dlott ordered the city and Cincinnati Police Department to confer with the U.S. Department of Justice and submit any proposed changes to the city’s 1981 decree within 90 days.

At the time, Police Chief Eliot Isaac said it was “disappointing to see this go away. I recognized its benefits over the years. We will continue to look towards other avenues to create a diverse workforce that is reflective of the community we serve.”

One captain’s slot is open now, and a second opened last month when veteran Captain Paul Broxterman retired.

The next lieutenant on the promotion eligibility list is Lt. Joe Richardson, followed by Mitchell and Schofield, all of whom are white, and then Lt. Brian Norris, who is black, followed by Lt. Chris Ruehmer, who is white, according to the lawsuit.

“Due solely to the 1987 State Consent Decree and its race- and sex-based quotas, the City and Mayor intend to conduct a double fill, promoting Brian Norris, a black male, ahead of both Plaintiffs Andrew Mitchell and David Schofield, solely on the basis of Norris’ race, at the time that Joe Richardson is promoted,” the lawsuit states.

This double-fill, which was expected to occur imminently when the lawsuit was filed, would prevent the need to promote upon the next vacancy, and deprive Mitchell of his promotion to captain and prevent both Mitchell and Schofield seniority, preferential job assignments, and lost pay, both regular and detail pay, the lawsuit reads.

Norris, commander of CPD’s Traffic Unit, had an attorney intervene in the suit on his behalf as a third party, other court records show.

His attorney participated in depositions and an Oct. 25 hearing in the case.

Norris asked the judge to throw out the lawsuit and award him reasonable attorneys’ fees and “all other relief” the court determines is proper.

Eleven out of CPD’s current 14 captains are white males, one is a black female, and two are white females.

That, the lieutenant’s attorney contends, demonstrates 25% of the current captains meet the quotas for women and minorities set forth in the 1987 State Consent Decree.

Of CPD’s 42 lieutenants, 24 are white males, 5 are black males, 5 are black females, 7 are white females, and one is male other, demonstrating 40% of the current lieutenants meet the quotas in the same decree, according to the lawsuit.

The current chief, Isaac, is black and so were his immediate two predecessors. In fact, a black male has served as Cincinnati’s police chief since 2011, the attorney for the lieutenants, Zach Gottesman, wrote in court records.

Gottesman took sworn testimony in depositions last month of Police Chief Eliot Isaac and Assistant Police Chief Teresa Theetge.

That testimony revealed that the state consent decree has rarely been triggered for promotions to captain, simply because either less than four people were promoted off the list or the promotional list included either a female or black male promotion, Gottesman wrote in court records.

Chief Isaac testified, according to a copy of his deposition and Gottesman’s summary of it:

• The consent decree has not been an ideal means for achieving diversity.
• The consent decree has not been universally embraced by the rank and file, including women and minority officers, some of whom are offended by the notion that they cannot compete on a level playing field with their white counterparts.
• The issue has been divisive at times within CPD’s rank and file.

But the chief noted he was promoted to lieutenant as a result of the consent decree in 2002. He joined CPD in 1988, serving as a patrol officer in various assignments. He was promoted to sergeant in 1997; lieutenant in 2002; captain in 2004 and assistant chief in 2015.

In September 2015, Isaac was named interim chief after the former chief, Jeffrey Blackwell, was fired by then-City Manager Harry Black.

Isaac was appointed police chief a few months later, in December 2015.

“I’ve seen many things throughout the years. I’ve seen officers use racial slurs,” Isaac testified during his Oct. 19 deposition.

“I’ve seen officers express bias and different actions throughout the years. I’ve seen many examples of discrimination in the department.”

He also said during his deposition the city administration is only “somewhat” diverse and “what I hear from citizens of Cincinnati is that they want to see - and I speak specifically about the police department because that’s what I’m most familiar with. They want to see a police department that is representative of what the city is. "

He testified that there is only one African-American captain and no African Americans on the senior staff of assistant chiefs.

“I am in the fourth quarter of my career for certain so I think in the - the leadership roles in the department, the feedback that I receive is that they want to see that very diverse leadership in the police department.”

Assistant Chief Theetge said in her deposition that, based on the Census data in the city, she doesn’t think the police department reflects the community that it serves at this time.

She responded “No” when asked if the consent decree has not been an effective tool in creating the diversity she thinks is appropriate at the rank of lieutenant and captain.

She testified she thinks if the city hadn’t had the consent decree, the department’s diversity levels would have been even lower.

Assistant Chief Theetge responded “no” when asked if she’s observed actual discrimination against minorities since she’s attained the rank of captain in 2007.

The Department of Justice got involved in Cincinnati’s police hiring and promotional practices and requested the city change them after a white officer sued last year when he was passed over for a promotion.

Erik Kohler scored eighth on the sergeant promotion test, but a Black officer who scored 12th got the promotion. His lawsuit says the consent decree that was meant to diversify the department is now discriminating against white officers.

Kohler’s lawsuit seeks class-action status for him and all other officers in similar situations at CPD.

If that is granted, sometime in the next six months, that could overturn many other cases where officers were discriminated against based on their race and sex, according to his other attorney, Chris Wiest.

Earlier this year, Mayor Cranley and Chief Eliot Isaac wrote a letter to President Joe Biden defending the city’s hiring practices.

It states in part:

“In 1980s, after decades of exclusion, the City and the DOJ entered into a consent decree that greatly increased the numbers of African-Americans and women within our department. As the current police chief, I can say that my own career benefitted from the consent decree. Without it, I would not be chief.”

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