BERLIN — The Berlin Fire Department and its leadership last week filed a motion to dismiss an $8 million civil suit filed by a former firefighter and EMT alleging a pattern of harassment and intimidation over his perceived sexual orientation.
In August, former Berlin firefighter and EMT Zachary Tyndall, through his attorney James Otway, filed suit in U.S. District Court, alleging a long pattern of harassment and intimidation carried out by the department’s leadership over his perceived sexual orientation. The suit, which originally named as defendants Chief Bryon Trimble, Assistant Chief Derrick Simpson, BFC President David Fitzgerald and former EMS Supervisor Norris Donohoe, Jr., is seeking $2 million in compensatory damages and another $6 million in punitive damages. Donohoe has since been dropped as a defendant in an amended complaint.
The suit alleges the BFC and the named individual defendants carried out a “deliberate and conscious effort” to harass and intimidate Tyndall in an attempt to drive him out of the department because of the defendant’s perception of Tyndall’s sexual orientation. The alleged pattern of abuse included repeated derogatory slurs and a pattern of offenses aimed at driving Tyndall to quit the department he had been a full-time employee of which since 2008 and a cadet since he was 14 years old.
“There has been a deliberate and conscious effort on the part of the defendants to harass and intimidate Zack Tyndall and drive him from the department because of the individual defendants’ perception of his sexual orientation,” the complaint reads. “Many of the acts complained of were witnessed by other members of the Berlin Fire Company. Most were reported to the leadership of the company and many were, in fact, committed by the leadership of the company.”
In short, Tyndall alleges in the complaint the defendants made a deliberate and conscious effort to harass and intimidate him based on the perception he was effeminate and did not conform to their gender stereotypes. Because he did not conform to the leadership’s gender stereotypes, they subjected him to an objectively hostile and abusive work environment.
Last week, however, the BFC and the named individual defendants filed a motion to dismiss the case on several fronts. For example, the individual defendants alleged the suit should be directed at the department as a whole, if at all, and not the individuals in leadership positions.
“An employee claiming discrimination in the workplace must make their claim against their employer, not against the alleged discriminatory supervisor,” the motion reads. “Accordingly, defendants Trimble, Simpson and Fitzgerald are entitled to dismissal of the Title VII action.”
The emotional distress caused by the continued pattern of abuse is a pillar of Tyndall’s complaint, but the motion to dismiss asserts the emotional distress claim does not meet the accepted standard. According to the motion to dismiss, the plaintiff must allege and prove facts showing that the conduct in question was intentional or reckless, that it was extreme and outrageous, that there was a causal connection between the conduct and the emotional distress and that the emotional distress was severe. The motion suggests Tyndall’s suit fails to hit the mark on those standards.
“The Maryland Court of Appeals has cautioned that the tort of intentional infliction of emotional distress should be imposed sparingly and its balm reserved for those wounds that are truly severe and incapable of healing themselves,” the motion reads. “The ‘extreme and outrageous’ standard is quite high. The defendants’ conduct must be so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.”
The motion to dismiss alleges Tyndall was just as guilty of many of the same incidents and actions for which the complaint accuses his supervisors and BFC leadership. For example, the motion asserts Tyndall participated in the same firehouse banter including slurs about sexual orientation, grabbing or touching other BFC members and making the same references about himself for which the defendants are accused.
According to the complaint, Tyndall first complained to Trimble and urged him to cease and desist the name-calling and other abuse to no avail. Tyndall then complained to Simpson, Donohue and ultimately Fitzgerald, but the abuse and harassment allegedly continued. Frustrated with the lack of action on the part of his superiors in the department, Tyndall ultimately took his grievances to Mayor Gee Williams and the town’s human resources director.
After Berlin initiated an investigation into the alleged abuses, the town’s elected officials voted to pull the municipal funding for its fire department in 2013. Earlier this year, the town’s elected officials voted to restore less than half of the department’s original funding while the civil suit plods through the legal process. Meanwhile, a second BFC member has threatened to file a similar suit, but no formal complaint has yet been filed.
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