A Cincinnati firefighter who alleged that a software problem during a promotional examination cost him an opportunity to become a district chief has lost his race discrimination lawsuit in the U.S. Court of Appeals for the Sixth Circuit.

The case, Roper v. City of Cincinnati Fire Department, arose from a 2019 promotional examination for district chief. Janos Roper, a longtime Cincinnati firefighter, sat for the examination along with other candidates. During a typewritten portion of the test, Roper and several other candidates experienced a problem with the testing software that disrupted the formatting of their answers. Roper contended that the issue consumed valuable testing time and was “very damaging” to his performance.

Roper reported the problem to a human resources employee within the department, who forwarded the complaint to the company that created the examination. The testing company investigated and concluded that the formatting issue resulted from user error. The company nevertheless scored the examination without regard to any formatting problems. According to the court, the fire department based promotions solely on the candidates’ examination scores. Roper finished 16th on the eligibility list, while the department had only 11 district chief vacancies to fill. As a result, he was not promoted.

In 2022, Roper filed suit alleging that the Cincinnati Fire Department discriminated against him because of his race. He claimed both that he had been subjected to different terms and conditions of employment during the testing process and that the department’s failure to promote him constituted unlawful racial discrimination. The case was removed to federal court, where the district court granted summary judgment in favor of the department.

On appeal, the Sixth Circuit affirmed. Writing for the court, Judge Raymond Kethledge explained that to establish a prima facie failure-to-promote claim under Title VII, a plaintiff must show, among other things, that the employer promoted someone who was similarly situated in all relevant respects except for race. The court noted that the department promoted candidates strictly according to examination scores, in “sequential order,” until all 11 vacancies were filled. Because Roper scored lower than every candidate who was promoted, the court concluded that he could not show that the successful candidates were similarly situated to him with respect to the criterion that governed promotion decisions.

Roper argued that the examination itself was defective and that the results should therefore not be used to distinguish him from the successful candidates. The court rejected that argument, stating that “Title VII provides a remedy for racial discrimination, not for defective tests.” The court emphasized that the examination scores were the sole basis for promotion decisions and that the department’s use of those scores was race-neutral. To proceed with a discrimination claim, the court said, Roper was required to present evidence that the software or formatting problem itself resulted from racial discrimination. According to the court, he failed to make that showing.

The Sixth Circuit therefore affirmed summary judgment in favor of the Cincinnati Fire Department.