Fire Lieutenant Loses ‘Buzzing Cell Phone’ Promotion Claim

Written on 09/11/2021
Will Aitchison

Jeffrey Neal is a Cincinnati fire lieutenant. In 2015, the Department began accepting internal applications for fire captain and administered pro­motional exams as part of that process. Neal applied for the advancement and participated in the promotional exam, which consisted of five sections. The first two sections presented objective, multiple choice questions; whereas the remaining three were subjective, in­volving tactical, interview, and written components.

Neal’s rankings for the first four sections varied between 39 and 43, and he ranked 14 in the fifth section – yielding a final rank of 42 out of 54 candidates. The City of Cincinnati ultimately promoted the 25 highest scoring candidates, passing over Neal.

Neal sued, challenging the admin­istration of the tactical and interview portions. These portions of the exam involved, among other things, Neal orally responding to questions posed by assessors. Neal alleged that the in­terruptions began during the tactical portion after an assessor’s phone went off. Because the phone was located across the room in a backpack, the assessor walked over to the backpack, rummaging around before locating the phone to silence it.

The assessor spent considerable time reading texts from the phone before “wandering” back to the table. And once there, the phone repeatedly vibrated, prompting the distracted assessor to engage with the phone and respond to messages, while presumably ignoring Neal. All of this occurred during an exam where phones were not permitted.

These distractions spilled over to the interview portion as well. At one point, an assessor was responding to a text message during the entirety of Neal’s answer to a question. To make matters worse, another assessor allegedly dozed off for some period of time. Neal argued that these repeated distractions placed him at a considerable disadvantage for the tactical and interview portions of the exam because other applicants did not encounter similar distractions.

Because Neal brought a “man­damus” action seeking promotion to captain, he was required to show that he had “a clear legal right to promotion, a clear legal duty on the part of the City to provide the foregoing, and that he had no plain and adequate remedy in the ordinary course of law.” The Ohio Court of Appeals found that Neal could not establish the first of these requirements.

The Court found there to be a “disconnect” between a flawed testing environment and awarding Neal the promotion. As the Court analyzed it, “Neal’s scores during the untainted portions of the test suggest that he would not have qualified for promotion even under an ideal testing environ­ment. Regardless, we simply don’t know how Neal would have fared, forcing us to speculate. In fact, his expert acknowledged that ‘it is impossible’ to determine how Neal would have done ‘had the examination been conducted appropriately.’ His lawyer, in his brief to this Court, echoes the point, empha­sizing that ‘it was impossible to grade’ Neal’s test and that ‘it was impossible to determine how he would have scored.’

“If, indeed, it was impossible to divine any of this, then the trial court should never have engaged in spec­ulation and simply promoted Neal. None of this, of course, is to belittle what Neal experienced during his testing experience. We can appreciate how frustrating it must have been to encounter distracted, bored, or sleep­ing evaluators. But mandamus is an extraordinary, and narrow, remedy, and it does not exist to rectify every frustration and slight that a civil service employee experiences.”

Neal v. City of Cincinnati, 38 OPER ¶ 107 (Ohio Ct. App. 2021).

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