BERLIN — There was some movement this month in the ongoing $8 million civil suit filed against the Berlin Fire Company alleging malfeasance from leadership over a former employee’s perceived sexual orientation, including the winnowing of the list of individual defendants from four to two and a demand for a jury trial.
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 leaders 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.
The suit alleges the BFC and the named individual defendants carried out a “deliberate and conscious effort” to harass and intimidate Tyndall, driving Tyndall to quit the department he had been a full-time employee of since 2008 and a cadet since he was 14 years old.
In early December, the U.S. District Court judge ruled in favor in part on a motion to dismiss the case filed by the BFC and the named individual defendants, but ruled against the motion in other facets of the case. Essentially, the federal court judge said the original complaint was unspecific about the nature of the individual defendants’ roles in the various episodes of abuse.
For example, Count I in the suit alleges conduct in violation of Title VII of the Civil Rights Act of 1964 and the state law tort of intentional infliction of emotional distress. However, under the statute, individual defendants cannot be held liable for alleged violations under Title VII, leaving the BFC as the lone defendant under that count.
As to Count II, which alleges the intentional infliction of emotional distress on the plaintiff, the judge ruled last week the original complaint did not specify which of the defendants were actively involved in the specific incidents of alleged harassment and abuse.
“The plaintiff’s complaint in Count 2 is lodged against all four defendants. However, the amended complaint does not consistently specify which individual defendants were allegedly involved in the particular incidents he describes,” the order reads. “Accordingly, I will grant the defendants’ motion to dismiss Count II as to defendants Simpson and Fitzgerald, with leave to amend, but deny it as to defendants Trimble and the BFC.”
As a result, the judge earlier this month directed the plaintiff to file a second amended complaint within 14 days specifically identifying which defendants allegedly engaged in the actions he describes in the suit. Tyndall filed the second amended complaint two weeks ago, in which Fitzgerald was dropped as a defendant, leaving only the BFC, Trimble and Simpson as the remaining defendants in the other counts of the case. Donohoe was dropped as a defendant earlier.
In addition, Tyndall last month also filed a demand for a jury trial. The amended complaint describes in detail the alleged pattern of abuse and harassment carried out by Trimble and Simpson.
“There has been a deliberate and conscious effort on the part of defendants Trimble and Simpson to harass and intimidate Zack Tyndall and drive him from the department because of Trimble and Simpson’s belief that the plaintiff, who they perceive as effeminate, did not conform to their gender stereotypes,” the amended complaint reads. “Because the plaintiff was perceived to be nonconforming to the defendants’ gender stereotypes, the defendants subjected the plaintiff to an objectively hostile and abusive work environment.”
The situation came to a head in December 2012 when Tyndall, acting as an on-duty paramedic responded to what turned out to be a fatal accident on Route 50. Tyndall arrived and immediately began administering assistance to a passenger involved and had to “bag breathe” the victim to maintain respiration. The complaint alleges BFC members essentially turned their collective backs on Tyndall’s efforts.
“However, when he requested assistance to get the stretcher to the ambulance, members of the Berlin Fire Company on scene refused to assist him in moving the stretcher to the ambulance,” the complaint reads. “Tyndall was able to get the patient to the ambulance by bag breathing the patient with one hand and pushing the stretcher with the other.”
According to the complaint, even after Tyndall loaded the patient into the ambulance, BFC members on hand allegedly refused to drive the ambulance to the hospital. Ultimately, a Berlin Police officer on scene drove the ambulance to the hospital.
An investigation into the incident conducted by the Maryland Institute for Emergency Medical Services Systems (MIEMSS) revealed no wrongdoing on the part of the BFC in the handling of the incident, although the investigator in the case did warn the “underlying tensions between the company and the town of Berlin are a cause for concern.”
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