Case: 1:17-cv-00737-TSB Doc #: 1 Filed: 11/03/17 Page: 1 of 12 PAGEID #: 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

GARY P. COLOREZ : Case No. 1:17-cv-737

431 N. 33rd Street :
Milwaukee, WI 53208 : Judge
:
Plaintiff, :
:
-vs- :
:
CITY OF CINCINNATI, OHIO :
City Hall :
801 Plum Street :
Cincinnati, OH 45202 :
:
-and- : COMPLAINT WITH JURY DEMAND
: ENDORSED HEREON
HARRY BLACK, Individually :
And in his official capacity as :
City Manager of the City of Cincinnati :
City Hall :
801 Plum Street :
Cincinnati, OH 45202 :
:
-and- :
:
MARASKESHIA SMITH, Individually :
And in her official capacity as :
Director of Public Services of the :
City of Cincinnati :
City Hall :
801 Plum Street :
Cincinnati, OH 45202 :
:
Defendants. :
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I. INTRODUCTION

The City of Cincinnati hired Gary Colorez in June 2017 as Public Works Operations

Superintendent. When he was hired, his boss, Public Services Director Maraskeshia Smith, told

him that she saw him as someone who could clean up other City departments after he cleaned up

the Public Works Department.

In Milwaukee, where Mr. Colorez was a manager in the Sanitation Department before

coming to Cincinnati, the Sanitation Department not only covered its own costs but generated a

surplus which went back into the City budget. His goal was to accomplish that same result with

the Public Works Department in Cincinnati.

To that end, after a few weeks on the job here, Mr. Colorez recommended to Ms. Smith

that the Public Works Department should not continue to buy from vendors who had previously

supplied inferior or inappropriate goods to the City.

He also recommended to Ms. Smith that the City terminate its contract with Contract

Sweepers, the third-party street sweeping company which was contracted to sweep the Citys

downtown streets at a cost of $880,000 annually.

Mr. Colorez brought to Ms. Smiths attention numerous times that he lived downtown

and was, therefore, personally aware that Contract Sweepers was not performing under their

contract with the City, since he knew they were not sweeping streets on a nightly timetable as

they were contracted to do. Yet, they were still charging the City as if they were performing

under the contract. Mr. Colorez got to the point where he refused to sign for payment on these

contracts and ordered them sent to Public Services Deputy Director Joel Koopman. Mr. Colorez

determined that City workers could do a better job and save the City approximately $500,000.

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Mr. Colorez also challenged the initiative of City Manager Harry Black and the Citys

relationship with the purchasing clearinghouse BFX, LLC. (BFX, LLC was incorporated by

Blacks close friend Al Foxx and was owned by Foxx and his wife.)

Mr. Colorez also recommended to Ms. Smith that the City reconsider its recycling

contract when that contract was up for renewal, since the vendor was charging the City for

recycling its metal waste, rather than paying the City for its recycled metal waste.

Mr. Colorez also brought to Ms. Smiths attention that Greenspace vendors with whom

the City had contracted to mow grass were not cutting grass and yet were still billing the City.

Mr. Colorez asked Greenspace Operations Supervisor John Ervin to cross-reference incoming

complaints for unmowed grass with invoices from the contractor due to Mr. Colorezs suspicions

that the City was being billed fraudulently by these contractors.

Mr. Colorez also complained of the high cost of lot abatements and had the interim

Supervisor Tracy Groome show him examples of lot abatement cleanup and costs. He

questioned her as to why the City was paying such high costs for cleanup, especially since the

cost exceeded the work performed. Mr. Colorez had Greenspace Operations Supervisor Ervin

take him out to one of the abatement properties that was due for cleanup at a cost estimate of

$10,000. The small amount of work that would have had to have been done was shocking to Mr.

Colorez in light of the cost that the City was going to incur. As a result, he ordered all large

abatement projects to be halted for the time being.

Mr. Colorez complained to Ms. Smith that City crews could perform the same abatement

services that these third-party contractors were doing, at a 75% cost savings. Mr. Colorez had

requested all abatement contracts from Finance Procurement Services Supervisor Robert

Armacost in late-August 2017.

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Mr. Colorez cited as other examples of wasteful spending the fact that through this third-

party procurement process, the City was paying $41 for a 16 pack of paper towels nearly twice

the price it should be paying; and the City was paying three times what it should be paying for

paint.

In short, Mr. Colorez made it well known within the City administration that he was

relentlessly seeking answers as to why the City was using third-party vendors to perform these

(and other) services given that the City costs had risen by 100% to 200% with this approach.

Following (and as a direct result of) these complaints and initiatives by Mr. Colorez, Mrs.

Smith fired him on September 8, 2017. Mr. Colorezs termination had been approved by City

Manager Harry Black. Mr. Colorezs termination was in retaliation for the complaints he raised

regarding the waste of taxpayer funds he had identified, and the fraud being perpetrated on the

City by certain vendors, and on the taxpayers of Cincinnati by certain of their elected and

appointed officials.

II. THE PARTIES

1. Plaintiff Gary Colorez (Mr. Colorez or Plaintiff) is a citizen of the United

States and resident of Milwaukee, Wisconsin. Mr. Colorez has a residence in Cincinnati,

Hamilton County, Ohio. At all relevant times, he was employed by the City of Cincinnati as

Public Works Operations Superintendent.

2. Defendant City of Cincinnati is a municipality organized under the laws of the

State of Ohio.

3. Defendant Harry Black is a citizen of the United States and a resident of the State

of Ohio, and at all relevant times was the City Manager of the City of Cincinnati. Mr. Black is

being sued individually and in his official capacity.

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4. Defendant Maraskeshia Smith is a citizen of the United States and a resident of

the State of Ohio, and at all relevant times was Mr. Colorezs Supervisor as City of Cincinnati

Public Services Director. Ms. Smith is being sued individually and in her official capacity.

III. JURISDICTION AND VENUE

5. This Court has jurisdiction to hear this case pursuant to 28 U.S.C. 1331 because

Plaintiffs federal claims arise under the laws of the United States.

6. This Court also has diversity jurisdiction pursuant to 28 U.S.C. 1332 because

the matter in controversy exceeds the sum or value of $75,000 and is between citizens of

different states.

7. This Court has supplemental jurisdiction over the State law claims pursuant to 28

U.S.C. 1367 because Plaintiffs state law claims derive from the same operative facts and are

so related to his federal claims over which the Court has original jurisdiction and diversity

jurisdiction that they form a part of the same case or controversy.

8. Venue is proper pursuant to 28 U.S.C. 1391 because Plaintiff at all relevant

times was employed in this Division and District, and the unlawful conduct alleged in this

Complaint took place within this Division and District.

IV. THE FACTS

9. The City of Cincinnati hired Gary Colorez in June 2017 as Public Works

Operations Superintendent.

10. When he was hired, his boss, Defendant Public Services Director Maraskeshia

Smith, told him that she saw him as someone who could clean up other City departments after he

cleaned up the Public Works Department.

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11. In Milwaukee, where Mr. Colorez was a manager in the Sanitation Department

before coming to Cincinnati, the Sanitation Department not only covered its own costs but

generated a surplus which went back into the City budget. His goal was to accomplish that same

result with the Public Works Department in Cincinnati.

12. To that end, after a few weeks on the job here, Mr. Colorez recommended to Ms.

Smith that the Public Works Department not continue to buy from vendors who had previously

supplied inferior or inappropriate goods to the City.

13. Mr. Colorez challenged the initiative of City Manager Harry Black and the Citys

relationship with the purchasing clearinghouse BFX, LLC.

14. BFX, LLC was incorporated by Blacks close friend Al Foxx and was owned by

Foxx and his wife.

15. Mr. Colorez also recommended to Ms. Smith that the City terminate its contract

with Contract Sweepers, the third-party street sweeping company which was contracted to sweep

the Citys downtown streets at a cost of $880,000 annually.

16. Mr. Colorez brought to Ms. Smiths attention numerous times that he lived

downtown and was, therefore, personally aware that Contract Sweepers was not performing

under their contract with the City, since he knew they were not sweeping streets on a nightly

timetable as they were contracted to do. Yet, they were still charging the City as if they were

performing under the contract. Mr. Colorez got to the point where he refused to sign for

payment on these contracts and ordered them sent to Public Services Deputy Director Joel

Koopman. Mr. Colorez determined that City workers could do a better job and save the City

approximately $500,000 per year.

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17. Mr. Colorez also brought to Ms. Smiths attention that Greenspace vendors with

whom the City had contracted to mow grass were not cutting grass and yet were still billing the

City. Mr. Colorez asked Greenspace Operations Supervisor John Ervin to cross-reference

incoming complaints for unmowed grass with invoices from the contractor due to Mr. Colorezs

suspicions that the City was being billed fraudulently by these contractors.

18. Mr. Colorez also complained of the high cost of lot abatements and had the

interim Supervisor Tracy Groome show him examples of lot abatement cleanup and costs. He

questioned her as to why the City was paying such high costs for cleanup, especially since the

cost exceeded the work performed. Mr. Colorez had Greenspace Operations Supervisor Ervin

take him out to one of the abatement properties that was due for cleanup at a cost estimate of

$10,000. The small amount of work that would have had to have been done was shocking to Mr.

Colorez in light of the high cost that the City was going to incur. As a result, he ordered all large

abatement projects to be halted for the time being.

19. Mr. Colorez complained to Ms. Smith that City crews could perform the same

abatement services that these third-party contractors were doing, at a 75% cost savings. Mr.

Colorez had requested all abatement contracts from Finance Procurement Services Supervisor

Robert Armacost in late August of 2017.

20. Mr. Colorez also recommended to Ms. Smith that the City reconsider its recycling

contract when that contract was up for renewal, since the vendor was charging the City for

recycling its metal waste, rather than paying the City for its recycled metal waste.

21. Mr. Colorez cited as other examples of wasteful spending the fact that through the

Citys third-party procurement process initiated and led by Defendant Black, the City was paying

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$41 for a 16 pack of paper towels nearly twice the price it should be paying; and the City was

paying three times what it should be paying for paint.

22. In short, Mr. Colorez made it well known within the City administration that he

was relentlessly seeking answers as to why the City was using third-party vendors to perform

these and other services, given that the City costs had risen by 100% to 200% with this approach.

23. Following these complaints and initiatives by Mr. Colorez, and in direct

retaliation for them, Defendant Ms. Smith fired him on September 8, 2017 without cause and

without explanation.

24. Mr. Colorezs termination had been approved by Defendant City Manager Harry

Black.

V. THE CLAIMS

A. COUNT ONE
WRONGFUL DISCHARGE IN VIOLATION OF
OHIO PUBLIC POLICY UNDER GREELEY

25. Plaintiff realleges the foregoing paragraphs as if fully rewritten herein.

26. A clear public policy in favor of public health and safety exists and is manifested

in the common law of the State of Ohio.

27. Dismissing employees under circumstances like those involved in Plaintiffs

dismissal here would jeopardize that public policy.

28. Plaintiffs dismissal here was motivated by conduct related to that public policy

because Defendants sought to retaliate against Plaintiff for having raised the concerns detailed

above, including but not limited to issues related to Greenspace maintenance and lot abatements,

i.e. matters of public health and safety.

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29. Defendants lacked an overriding legitimate business justification for terminating

Plaintiffs employment.

30. The public policy at issue here protected the publics health and safety.

31. Therefore, Defendants termination of Plaintiffs employment for raising

complaints concerning, inter alia, Greenspace maintenance and lot abatement contracts violated

that public policy.

32. As a direct and proximate result of Defendants unlawful, retaliatory conduct,

Plaintiff has suffered injury and damage for which he is entitled to judgment and relief.

B. COUNT TWO
VIOLATION OF THE OHIO WHISTLEBLOWER STATUTE, R.C. 4113.52

33. Plaintiff realleges the foregoing paragraphs as if fully rewritten here.

34. The Ohio Whistleblower Statute, R.C. 4113.52, grants protection against

discharge to employees who report either violations of law or matters reasonably believed to

violate the law.

35. During the course of his employment, Plaintiff became aware that the matters

detailed above, including but not limited to, Defendants approach to Greenspace maintenance

and lot abatements was a hazard to public health and safety.

36. Plaintiff reasonably believed those matters violated the law, and therefore he

reported them within the City administration.

37. Defendants terminated Plaintiff in retaliation for reporting those matters

reasonably believed by him to violate the law.

38. Defendants conduct violated the Ohio Whistleblower Statute, R.C. 4113.52.

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C. COUNT THREE
ABUSE OF POWER

39. Plaintiff realleges the foregoing paragraphs as if fully rewritten herein.

40. Defendants Black and Smith, as detailed above, acted beyond the scope of their

authority under the City Charter in terminating Plaintiffs employment in retaliation for

Plaintiffs complaints about Defendants misuse and waste of taxpayer monies.

41. As a direct and proximate result of Defendants unlawful, retaliatory conduct,

Plaintiff has suffered injury and damage for which he is entitled to judgment and relief.

D. COUNT FOUR
VIOLATION OF RIGHT TO FREE SPEECH 42 U.S.C. 1983

42. Plaintiff realleges the foregoing paragraphs as if fully rewritten herein.

43. Plaintiff engaged in the constitutionally protected speech or conduct when he

complained of Defendants misuse and waste of taxpayers monies.

44. Defendants actions in terminating Plaintiffs employment, in retaliation for his

protected speech or conduct, violated Plaintiffs right to free speech on matters of public concern

as guaranteed by the First and Fourteenth Amendments to the United States Constitution.

45. Defendants above-described conduct was intentional, malicious, willful and

wanton in nature.

46. As a direct and proximate result of Defendants unlawful, retaliatory conduct,

Plaintiff has suffered injury and damages and is entitled to judgment and relief.

E. COUNT FIVE
VIOLATION OF SUBSTANTIVE DUE PROCESS 42 U.S.C. 1983

47. Plaintiff realleges the foregoing paragraphs as if fully rewritten herein.

48. Defendants actions deprived Plaintiff of his protected interest in his good name

and professional reputation.

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49. Defendants intentional, malicious, and wanton actions effectively foreclosed the

opportunity for Plaintiff to advance his career by unlawfully terminating his employment in

retaliation for voicing complaints to the Defendants about their misuse and waste of taxpayer

monies detailed above.

50. As a direct and proximate result of Defendants unlawful, retaliatory conduct,

Plaintiff has suffered injury and damage for which he is entitled to judgment and relief.

WHEREFORE, Plaintiff Gary Colorez demands judgment against Defendants as

follows:

a. That Plaintiff be reinstated to his position as Public Works Operations

Superintendent effective September 8, 2017;

b. That Plaintiff be awarded compensatory damages including back pay and

emotional distress damages;

c. That Plaintiff be awarded punitive damages;

d. That Plaintiff be awarded pre-judgment interest;

e. That Plaintiff be awarded front pay;

f. That Plaintiff be awarded reasonable attorneys fees;

g. That Plaintiff be compensated for the adverse tax consequences of

receiving lump sum awards rather than compensation over several,

separate tax years; and

h. That Plaintiff be awarded all other legal and equitable relief to which he

may be entitled.

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Respectfully submitted,

/s/ Brian P. Gillan

Randolph H. Freking (0009158)
Brian P. Gillan (0030013)
Trial Attorneys for Plaintiff
FREKING MYERS & REUL LLC
600 Vine Street, Ninth Floor
Cincinnati, OH 45202
Phone: (513) 721-1975/Fax: (513) 651-2570
randy@fmr.law
bgillan@fmr.law

JURY DEMAND

Plaintiff hereby demands a trial by jury on all matters so triable.

/s/ Brian P. Gillan

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