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Tyndall v. The Berlin Fire Co.

United States District Court, D. Maryland

July 16, 2015

ZACKERY C. TYNDALL, Plaintiff,
v.
THE BERLIN FIRE COMPANY, et al., Defendants.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

This case concerns allegations of employment discrimination brought by Zackery C. Tyndall, a firefighter and paramedic, against the Berlin Fire Company ("BFC"), and allegations of intentional infliction of emotional distress against Bryon Trimble and Derrick Simpson, two of Tyndall's former co-workers at BFC.[1] See ECF 53 ("Third Amended Complaint").

Tyndall was a paid employee of BFC from 2008 to 2013. He alleges that BFC violated Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. §§ 2000e et seq., when BFC supervisors enabled the creation of a hostile work environment (Count I); retaliated against him for reporting harassing behavior (Count III); and ultimately fired him in retaliation for his reporting activity (Count III). See ECF 53 at 11-12, 15-16. Further, Tyndall alleges that Trimble and Simpson intentionally inflicted emotional distress on him when they engaged in much of the conduct that forms the basis for Tyndall's Title VII claim. The alleged conduct included, inter alia, calling Tyndall "gay boy" or "homo"; criticizing as "gay" his behavior with women, his hair, clothes, car, diet, home decor, and his relationship with his mother; touching him inappropriately; threatening his job; and turning his colleagues against him, so that some refused to assist him while he was serving as an emergency responder at a motor vehicle accident (Count II). Tyndall maintains that he is heterosexual, and Trimble and Simpson claim that they believe him. See, e.g., ECF 54-5 at 7, 8; ECF 55 at 23.

Now pending is "Defendants' Motion For Partial Summary Judgment", as to Counts I and II of the Third Amended Complaint. ECF 54 ("Motion"). The Motion is supported by a memorandum of law (ECF 54-5, "Memo"), as well as twelve exhibits. See ECF 54-7 through ECF 54-18, and Ex. 4.[2] Both sides rely primarily on the deposition testimony of six men: Tyndall; Trimble; Simpson; David A. Fitzgerald; Norris P. Donohoe; and, to a lesser extent, Marcus N. Brown.

BFC advances multiple, alternative arguments. First, BFC argues that this Court "lacks subject matter jurisdiction" as to Count I because BFC has always employed fewer than fifteen persons, and therefore Title VII is not applicable. ECF 54-5 at 26. Second, BFC claims that certain alleged acts are time-barred. Id. at 27-28. Third, BFC contends that there "is no claim for sexual orientation discrimination under Title VII." Id. at 30. Fourth, defendants assert that the alleged discriminatory conduct was not based on Tyndall's "sex." Id. at 30-39. Fifth, and finally, BFC claims the conduct was not so severe or pervasive as to create a hostile work environment. Id. at 39-42. With respect to Count II, Trimble and Simpson argue that some of the acts alleged are time-barred, id. at 42, and "Tyndall's remaining allegations are not sufficient to support a claim for IIED under Maryland law." Id. at 43-45.

Plaintiff opposes the Motion (ECF 55, "Opposition"), and has submitted twenty-four exhibits. See ECF 55-6 through ECF 55-29. Plaintiff also submitted a short "Supplemental" to his Opposition (ECF 57), consisting of an affidavit supplementing and authenticating two exhibits filed with his Opposition. Defendant submitted a reply (ECF 58, "Reply"), with five additional exhibits. See ECF 58-1 through ECF 58-5.

The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will DENY the Motion as to both Counts.

I. Factual Background

A. Berlin Fire Company, the Individual Defendants, and Others

BFC "provides fire, rescue, and emergency medical services [("EMS")] to northern Worcester County [, Maryland]... including all of the corporate limits of the Town of Berlin [the "Town" or "Berlin")]...." Affidavit of David A. Fitzgerald, Ex. 1 to Motion, ECF 54-7 ("Fitzgerald Aff.") ¶ 4. BFC "began providing emergency medical/ambulances services in the mid-1960s, " and "hired its first employee" in the 1970s, "to help staff the ambulances." Id. "Presently, the [BFC] employs six (6) full-time paramedics (EMT-P) who perform advanced life support ("ALS") services and four (4) full-time emergency medical technicians ("EMT-B" or "EMT") who perform basic life-support ("BLS") services." Id. The paid EMTs are also "cross-trained in firefighting." Id. "During the time alleged in the Third Amended Complaint, the Company also had one paid, part-time administrative position." Id. "All full-time EMS are male; there are two or three part-time female EMS personnel." Id. ¶ 6.

In addition to BFC's paid staff of about eleven, BFC manages a larger cadre of volunteers. The volunteers are regarded as "members" of BFC, and a variety of membership statuses are available. See, e.g., Supplemental Affidavit of David A. Fitzgerald, ECF 58-5 ("Fitzgerald Supp. Aff.") (referring repeatedly to "volunteer members"); ECF 54-7 at 7 (letter from BFC addressed to "All Members (Active, Gold Badge, Life, Retired, Cadet, Auxiliary, and Paid Employees[)]").[3] The parties agree that the BFC had "approximately 60 volunteers" during the period of Tyndall's employment. See Deposition of Bryon J. Trimble, Ex. 3 to Motion, ECF 54-9 ("Trimble Depo. Pt. One") at 61:15-19; Opposition, ECF 55 at 18. The parties do not specify whether those figures include all membership levels, or only active volunteer firefighters. Id. BFC's volunteers are not paid wages, but they do receive certain benefits in exchange for their membership and service. The parties dispute what benefits are available to BFC volunteers, either directly from BFC or as a result of a member's participation with BFC as a volunteer, and whether those benefits amount to "significant remuneration" within the meaning of Title VII. The facts at issue in this dispute are recounted, infra, in relation to the question of whether BFC had at least fifteen "employees" within the meaning of Title VII during Tyndall's employment at the BFC.

BFC's command structure is composed of volunteers. See, e.g., Trimble Depo. Pt. One, ECF 54-9 at 52:16-17. Although the structure is not entirely clear from the record, it appears that a volunteer Board of Directors, led by a Board Chairperson, see ECF 54-7 at 5 (letter from BFC to employees), is generally at the head of BFC. The Board of Directors also includes a President. Deposition of David Fitzgerald, Ex. 2 to Memo, ECF 54-8 ("Fitzgerald Depo. Pt. One") at 92:14-17. A supervisory group of volunteer officers, which reports to the Board, manages BFC day-to-day. See id. at 55:13-21. The supervisory group includes a Fire Chief ("Chief") and some number of Assistant Chiefs, see, e.g., Trimble Depo. Pt. One, ECF 54-9at 104:3-21, with titles such as First, Second, and Third Assistant Fire Chief. See, e.g., Id. at 48:15-20.

In 2008, BFC also created a paid supervisory position for an "EMS Supervisor." Deposition of Norris P. Donohoe, Jr., Ex. 5 to Motion, ECF 54-11 ("Donohoe Depo. Pt. One") at 19:13-21, 20:1-4. The EMS Supervisor serves as the direct supervisor for paid EMS personnel, see Trimble Depo. Pt. One, ECF 54-9 at 56:1-9, and is responsible for scheduling shifts for EMS personnel, as well as for paperwork, small equipment repairs, and filling in on emergency services, as needed. Donohoe Depo. Pt. Pt. One, ECF 54-11 at 20:12-21. In addition, a group known as the "Hiring Board" or "Hiring Committee" is responsible for hiring and firing decisions. Deposition of Zackery Tyndall, Ex. 6 to Motion, ECF 54-12 ("Tyndall Depo. Pt. One") at 100:8-16, 122:19-22; see also, e.g., Donohoe Depo. Pt. Pt. One, ECF 54-11 at 24:8-10.

From at least January 2009 through August 2012, paid BFC personnel were also under the supervision and control of the Town of Berlin ("Town" or "Berlin"). "From 1974 to 2009, the Town of Berlin administered the salaries and benefits for [BFC's] paid EMS personnel but the funding was provided by the Company." Fitzgerald Aff., ECF 54-7 ¶ 7. In January 2009, the BFC and Berlin "entered into a Memorandum of Agreement, ' formally establishing a relationship for the purpose of classifying the paid EMS personnel as leased employees' to the Town, thereby allowing the leased employees to participate in the State of Maryland pension fund." Id. As discussed below, the BFC and Berlin ended this agreement in August 2012. Id.

8. Ultimate responsibility for control of BFC's paid employees was apparently at the heart of the disagreement between BFC and Berlin that led to the end of their "Memorandum of Agreement".

Defendant Trimble has been a volunteer member of BFC since 1988, when he was eighteen years old. Trimble Depo. Pt. One, ECF 54-12 at 47:1-10. He has held a number of elected leadership positions with BFC throughout the years, including serving three times as Chief. Id. at 48:1-21, 49:3-17. It appears that in 2008, when Tyndall began working as a paid employee of BFC, Trimble was serving as an Assistant Chief at some level or took on that role soon after. See Tyndall Depo. Pt. One, ECF 54-12 at 104:1-21. In December 2011, Trimble was elected Chief for the 2012 term. Trimble Depo. Pt. One, ECF 54-12 at 49:18-21, 50:1-4. He resigned as Chief in the Summer of 2012. Id. at 51:2-5.

Defendant Simpson first joined BFC as a cadet member in 1995 and became a volunteer firefighter in 2000. Deposition of Derrick E. Simpson, Ex. 4 to ECF 54 (paper copy only) ("Simpson Depo. Pt. One") at 26:2-10. In 2009 and 2010, Simpson served as Chief of BFC. Id. 27:3. In 2011, he served as Second Assistant Chief. Id. 26:3-4. In 2012, he was First Assistant Chief. Id. at 26:4-5.

David A. Fitzgerald began working at BFC in 1991, and worked there as a full-time employee until 2003. Fitzgerald Depo. Pt. One, ECF 54-8 at 15:4-7. He has been the President of BFC since 2010. Id. at 91:19-21, 92:1-10.

In 1998, Norris P. Donohoe began working with BFC as a paid firefighter and Cardiac Rescue Technician ("CRT"). Donohoe Depo. Pt. One, ECF 54-11 at 19:7-12. According to Donohoe, he was promoted to the new position of EMS Supervisor in Fall 2008. Id. at 19:19-21, 20:1-4. Donohoe continued to serve as EMS Supervisor until May 2012, when he was fired by Berlin. Id. at 21:3-7. He was rehired by BFC in August 2013 as an EMS provider. Id. at 24:8-12.

Marcus N. Brown has been a member of BFC since at least 2008. Deposition of Marcus N. Brown, Ex. 9 to Motion, ECF 55-10 ("Brown Depo. Pt. One") at 34:8-12. He became the Chief after Trimble's resignation in 2012, and served in that position from September 2012 through December 2013. Id. at 35:3-18.

B. Tyndall's Allegations

Defendants do not expressly dispute most of Tyndall's allegations concerning his co-workers' conduct. Instead, they provide a bullet-point list of his allegations, ECF 54-5 at 33-37, and characterize them as "teasing and horseplay." Id. at 33. In their Reply, they also outline a few specific disputes with "Tyndall's Factual Background Allegations, " as presented in his Opposition. ECF 58 at 1-4. These disputes all appear to relate to Count III, which is not at issue in the Motion. Id.

As noted, Tyndall began to volunteer with BFC in approximately 2004, at the age of fourteen, as a junior cadet. Tyndall Depo. Pt. One, ECF 54-12 at 39:2-4.[4] Further, because of the long affiliation of Tyndall's father with BFC, Tyndall recalls spending time there as a child, and thought it was "a very kind place." Id. at 69:14-21. Until 2007, nothing happened at the firehouse or with BFC members that Tyndall perceived as inappropriate or that made him uncomfortable. Deposition of Zackery Tyndall, Ex. A to Opposition, ECF 55-6 ("Tyndall Depo. Pt. Two") at 61:21-22, 62:1-2. At his deposition, Tyndall recounted the beginning of his harassment, as follows, id at 61:3-12:

Q [W]hat started happening in 2007 with you and members of the [BFC]?
A In 2007, there was a - that's my junior year and senior year of high school. They started calling me gay after a dance that we had. There was a woman that offered to have sex with me after the prom, and she was intoxicated, and I did not have sex with her. And they had the assumption that I was gay because I did not have sex with her.

Upon further questioning, Tyndall clarified that by "they" he meant Trimble and Simpson. Id. at 62:21-22, 63:1-2. Tyndall stated that he thought Trimble and Simpson learned of the dance incident through some of Tyndall's "group" in the cadet program. Id. 63:3-12.

Trimble agreed at his deposition that he had referred to Tyndall as "gay boy, " "homo, " and "queer", but in "a joking manner, " and he agreed that he had been doing so since Tyndall was a cadet. Trimble Depo. Pt. One, ECF 54-9at 114:10-21, 115:1. Trimble stated that "Gay Boy" was "just a nickname, " which Trimble called Tyndall "throughout his career in the Fire Company." Deposition of Bryon J. Trimble, Ex. C to Opposition, ECF 55-8 ("Trimble Depo. Pt. Two") at 69:1-21, 70:1-14. According to Trimble, everyone joked about it. Id. at 70:13-14. He did not know where the nickname came from. Id. at 70:18-20. Trimble also said that, an unspecified number of times, he "answered [his] phone when Zack would call... on occasion as Homo Anonymous." Id. at 84:405.

Simpson also agreed that he has called Tyndall "gay boy" or "homo, " and stated that he thought he started doing so after hearing about the incident at the dance. Simpson Depo. Pt. One, at 69:21, 70, 1-16. Simpson described the early name-calling as follows, id.:

Q Why did you call Zack gay boy or homo?
A It's just something that was done.... It started after, I think, he kind of told on himself, actually, that a girl... called him that, and it just kind of stuck. He called himself that and other people called him that and it didn't seem to bother him, he went along with it as everybody else.
***
Q This is the girl that was intoxicated and wanted to have sex with Zack at the prom, is that right?
A Yes. I don't know where it took place, but that's the girl.

Tyndall stated that initially he "kind of brushed it [ i.e., the name-calling] off." Tyndall Depo. Pt. One, ECF 54-12 at 65:4-11. He explained: "I didn't really think much of it, I just figured that they may have had - they thought that I should have had sex with her, and I felt that it was the right thing to do not to have sex with her. And it wasn't - it wasn't an everyday thing. So it wasn't like I said stop; I was like, I'm not gay, '...." Id. at 65:12-17.

Tyndall reports that sometime later in 2007 or in 2008, apparently after the name-calling began, Trimble touched him in his groin area in a way that made him feel uncomfortable. ECF 54-12 at 71:21-22, 72:1-20. Tyndall described the incident as follows, id (ellipses in brackets added):

Q From 2007 to 2008, was there any inappropriate touching or contact, or contact that made you feel uncomfortable?
A Yes, ma'am.
Q All right, and tell me about that.
A There was a time that I was beside the ambulance, I was in the - the way the firehouse is set up, the south side of the building, there is a ladder truck and a couple of ambulances. [...] How it came up exactly, I don't recall, but Bryon Trimble started tickling my side and then he like touched my groin. And then we both looked up and Jeff Dean, who was a paramedic with the [BFC] at the time, was standing in the office doorway just looking. I felt uncomfortable about the situation, and I don't know how he felt about the situation but...
Q All right. Did you ever have a conversation with [Trimble] about what happened?
A No. I was kind of like shocked at first, it was weird for me. I never had a man touch me in an area like that, in my groin. And it was kind of like I was stunned, like I didn't know what-at first, like what the heck just happened.

Tyndall also said that sometime in 2007 or 2008, both Trimble and Simpson frequently initiated a "game" that the parties refer to as "Bangkok." E.g., ECF 55 at 2. In short, Trimble or Simpson would ask Tyndall "What is the capital of Thailand?, " and then they would hit Tyndall in the groin. Tyndall Depo. Pt. Two, ECF 55-6 at 75:11-19. Tyndall claims this happened every few days for some unspecified period of time, and then in 2007 or 2008 the game "just died off." Id. at 77:1-7. According to Tyndall, he routinely told Trimble and Simpson not to hit him in the groin. Id. at 77:13-19. Other "members of the fire company" also engaged in the game. Tyndall Depo. Pt. One, ECF 54-12 at 233:19-20. Tyndall said that, "for a little while, it was happening in the culture" of BFC. Id. at 234:5-10. But Tyndall remembers feeling that soon "it progressed to just [Trimble and Simpson] doing it" to Tyndall, which Tyndall describes as "weird." Id. at 234:1-18.

During the same time frame, 2007-2008, Tyndall and Trimble would sometimes walk or run around town together for exercise. Tyndall Depo. Pt. Two, ECF 55-6 at 79:3-12. Tyndall was "a little heavier set in high school" and he was working to lose weight at the time. Id. He claims that "there were other members of the fire company that took part [in the exercise routines] as well, Bryon Trimble being one of them." Id. But "[m]ostly" it was just the two of them. Id. at 79:22, 80:1-3. During their exercises, when the men would pass the house of a girl who Tyndall had "a bit of a crush on in high school, " Trimble "would comment on the fact that she was probably having sex with someone else, and that he knew I was gay, I should just go ahead and say it, it's okay, I can tell him that I'm gay." Id. at 79:13-21. Tyndall recalled that "[w]hen the comments became more frequent, " perhaps "up until about 2008, " Tyndall felt uncomfortable and then he "stopped walking" with Trimble. Id. 80:4-16.

In 2008, after turning 18 and then graduating from high school, Tyndall became eligible to serve as a volunteer firefighter, rather than only as a cadet. It appears that he began serving as a volunteer firefighter as soon as he became eligible. ECF 55-6 at 40:9-21.

Sometime in 2008, apparently not long after Tyndall graduated from high school and became a volunteer firefighter, he also started working for BFC as a paid, part-time EMT. Tyndall Depo. Pt. Two, ECF 55-6 at 32:7-17. Around the same time, Tyndall also started working part-time as an EMT for the Ocean City Fire Department. Id. at 32:10-21. In approximately May 2010, Tyndall was hired as a full-time EMT-B at BFC. Fitzgerald Aff., ECF 54-7 ¶ 11; Tyndall Depo. Pt. One, ECF 54-12 at 34:1-21.

In his Memo, Tyndall asserts that from 2009 through 2012 the name-calling "escalated from being occasional to being an everyday occurrence." ECF 55 at 3. Trimble and Simpson claim that they continued to call Tyndall offensive names after Tyndall became a paid employee at BFC, i.e., beyond 2008, but not beyond 2011. Trimble states that he last called Tyndall names in "[p]robably 2011, " and that he did not call Tyndall names in 2012 or 2013. Trimble Depo. Pt. One, ECF 54-9at 115:2-13. But, as stated, in another part of his deposition, Trimble acknowledged that "Gay Boy" was Tyndall's "nickname" "throughout" his "career at the firehouse." Trimble Depo. Pt. Two, ECF 55-8 at 69:1-21, 70:1-14. Simpson states that he last called Tyndall "gay boy" or "homo" in 2010. Simpson Depo. Pt. One, at 69:2-15. According to Donohoe, Trimble and Simpson called Tyndall names such as "Gay Boy, homo, fag, faggot" a couple of times a week as late as 2012. Donohoe Depo. Pt. One, ECF 54-11 at 62:10-1, 63:1-10.

According to Tyndall, Donohoe also frequently called Tyndall names. Indeed, it appears Donohoe was the most frequent name-caller. Tyndall describes the progression as follows, Tyndall Depo. Pt. Two, ECF 55-6 at 95:20-22, 96:1-13:

Q And when did Mr. Donohoe start referring to you as gay?
A The exact date of him starting with that, I don't know. But it progressed with my employment there and it became something that was very minimal and occasional, I should say, in the beginning to something that morphed into an everyday occurrence on how I was addressed with my employment, up until the point he was - up until the point he was fired.
Q So it started out as an occasional reference to you as being gay to the point where every day he would refer to you as gay?
A I no longer had a name.
Q All right.
A I was referred to as gay boy, gay partner, faggot, et cetera.

Starting sometime in 2011 and continuing in 2012, see, e.g., ECF 55-6 at 212:3-6, Tyndall states that Trimble and Simpson began criticizing his personal choices. He summarized this as follows, id. at 207:12-19:

Q What led you to believe that those individuals [Trimble, Simpson, and Fitzgerald][5] considered you to be effeminate?
A They would constantly make comments about my hair, my clothing, the way I ate, the way I carried myself in general, the vehicle I drove, how well I can decorate my home, the home I live in, the way that my relationship is with my mother. I think that covers most of it.

Tyndall provided additional detail. He explained that, for example, Trimble criticized Tyndall's facial hair, because Trimble "thought that not being able to grow facial hair, a man should be able to grow a beard like other employee, [sic] I guess, but my stubble was not acceptable." Tyndall Depo. Pt. One, ECF 54-12 at 211:1-5. Similarly, Tyndall said: "I have different colored shirts, some of them may be a little on the bright side, ... the purples and the pinks, and [Trimble] felt that a man shouldn't wear those colors or that style of shirt...." Id. at 211:15-20. In response to such bright shirts, according to Tyndall, Trimble would say, "That shirt's gay. You're definitely gay, look at what you have on.'" Id. at 212:1-2. Trimble also criticized Tyndall's food choices, saying things like, "You're gay, look at what you're eating, you're eating salads. What are you trying to do, lose weight?'" Id. at 213:6-10. Further, Trimble criticized Tyndall's car as a "feminine Jeep that resembled a Jeep that a girl would drive, " id. at 214:4-10, and criticized Tyndall's use of "Coastal Living" magazine for home decor tips, and claimed that Tyndall must be gay because "only a gay guy would decorate [his home] that well." Id. at 215:1-9. Trimble also asserted that Tyndall must be gay because he had such a good relationship with his mother. Id. at 216:8-18. Simpson generally "followed along a lot with [Trimble's] comments" on each topic. Id. at 217:10-17. Simpson also thought Tyndall's habit of wearing button-down shirts with jeans and his failure to drive a truck like the rest of the guys showed that Tyndall was gay. Id. at 218:8-14, 219:3-7.

Also starting in 2011 and continuing through 2012, Trimble and Simpson singled out Tyndall for what Tyndall says everyone called "bitch work." See, e.g., Tyndall Depo. Pt. Two, ECF 55-6 at 268:7-17; id. at 104:3-21. For example, Tyndall was repeatedly asked to clean Trimble's "vehicle at the firehouse" and to reclean the latrines. Id. at 237:18 through 243:15. Tyndall states other people "were required to do [these things] as part of their job, but they weren't required - they were not asked to reclean things they have already cleaned, or specifically told to clean something by themselves without the assistance of their partner, like I was." Id. at 243:19-22, 244:1-2.

Trimble told Tyndall that Tyndall should start "sucking [Trimble's] dick for [work] shifts." Tyndall Depo. Pt. One, ECF 54-12 at 99:13-18. Tyndall recalled: "[Trimble] was convinced that I was sucking the person that's in charge of scheduling in Ocean City, he said I was sucking his dick for shifts, and I needed to start sucking [Trimble's] dick for shifts if I expect to work there [at BFC]." Id. at 99:13-18. According to Tyndall "[s]ometime in between 2011 and 2012, " Tyndall resigned from the position he had simultaneously maintained with the Ocean City Fire Department, because Ocean City wanted him to do "live fire training" with Trimble and Simpson, among others, and Tyndall "did not feel safe." Id. at 175:5-22.[6]

Trimble did not call other members of the BFC the same offensive names that he called Tyndall. He stated, for example, Trimble Depo. Pt. Two, ECF 55-8 at 130:17 through 132:1:

Q Did you ever call Eric Budd gay, gay boy, faggot, fag, homo, queer?
A No.

Starting sometime in 2011 and into early 2012, Tyndall began reporting the behavior of Trimble and Simpson to BFC officers, including Fitzgerald; "Phil Simpson, the chief engineer"; and John Holloway, "the chairman of the board." See Tyndall Depo. Pt. One, ECF 54-12 at 100:2-16; see also, id. at 101-103, 108-109. Tyndall also discussed his concerns with Donohoe, e.g., id. at 100:2-16, and with Bill Tilghman, who was Chief in 2011. E.g., id. at 115:7-16, 116:11-21.

By February 2012, Tyndall decided to report his colleagues' offensive conduct to officials of the Town. E.g., Tyndall Depo. Pt. One, ECF 54-12 at ...


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