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Dean v. Berlin Fire Co.

United States District Court, D. Maryland

September 17, 2018

JEFFREY JAMES DEAN, Plaintiff,
v.
THE BERLIN FIRE COMPANY, Defendant,

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         In this employment discrimination case, plaintiff Jeffrey James Dean filed suit against his former employer, the Berlin Fire Company (“BFC”), located in the Town of Berlin, Maryland. ECF 1 (Complaint); ECF 11 (Amended Complaint). Dean asserts claims for hostile work environment (Count I), as well as harassment and retaliation (Count II), in violation of Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. §§ 2000e et seq. (“Title VII”). Dean appended numerous exhibits to his suit. He seeks both compensatory and punitive damages.

         BFC has moved to dismiss plaintiff's Amended Complaint (ECF 14), pursuant to Fed.R.Civ.P. 12(b)(6), supported by a memorandum of law (ECF 14-2) (collectively, the “Motion”). According to BFC, the suit is untimely. Dean opposes the Motion (ECF 15, “Opposition”) and has submitted several exhibits. BFC has replied. ECF 16.

         No hearing is necessary to resolve the Motion. See Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, I must grant the Motion.

         I. Factual and Procedural Background [1]

         In October 2005, BFC hired Dean as a paramedic/firefighter. ECF 11, ¶ 4. During his employment, Dean worked with several senior BFC officials, including then-Chief Byron Trimble; Assistant Chief Derrick Simpson; Emergency Medical Services (“EMS”) Supervisor Norris Phillip Donohue, Sr.; and “President David Fitzgerald.” Id.[2] Dean alleges that, over the course of his employment, he witnessed ongoing racial, sexual, and other types of harassment by senior BFC officials, directed at several of his coworkers, including the use of derogatory racial epithets. Id. ¶¶ 4-6. Moreover, he claims that he, too, became a victim of harassment and retaliation. Id. ¶¶ 8, 9.

         On September 12, 2011, Dean was assigned a new paramedic partner, Zachery Tyndall. Id. ¶ 7. Tyndall informed Dean that he had experienced “years of non-consensual physical sexual contact, harassment, retaliation and discrimination” by Trimble, Simpson, Donohue, Fitzgerald, and other BFC employees, “based upon their perception of Tyndall's sexual preference as homosexual.” Id. ¶¶ 8, 11. Following Tyndall's reassignment, Trimble and other BFC officials also began to harass Dean by asking questions such as: “Where is your homo partner? Where's the little faggot?” Id. ¶ 10 (internal quotation marks omitted).

         Further, Dean alleges: “Throughout 2011, Dean began feeling pressure from Donohue, Trimble, Simpson and others . . . to join in their harassment of Tyndall, which he refused.” Id. As the harassment of Tyndall increased in severity, Dean and Tyndall repeatedly asked Trimble, Simpson, Fitzgerald, and Donohue to stop their behavior, to no avail, and complained to persons in leadership, including the President of the Board of Directors, John Holloway. Id. ¶¶ 12-15. On February 24, 2012, Dean and Tyndall complained of the ongoing harassment to the Mayor and to the Human Resources Director of the Town of Berlin (the “Town”). Id. ¶ 16. The Town subsequently conducted an investigation, which resulted in Donohue's dismissal. Id.

         Following the investigation, Dean alleges that BFC officials harassed, isolated, and disciplined him in retaliation for his participation. Id. ¶¶ 16-18. Dean was “chastised for miniscule matters and was written up for formal discipline for manufactured offenses or for something so minor as letting leaves blow into the engine bay of the Firehouse.” Id. ¶ 17. Additionally, Fitzgerald called the Berlin Police Department to request that it investigate Dean. Id. ¶ 18. Dean also alleges that, during an inventory of controlled substances following an ambulance call, he discovered that someone hid a narcotics vial in a container for needles, “where it could only have been deliberately placed by someone with access to the firehouse and the ambulance.” Id. After the Town cut funding for BFC in response to its failure to change its policies and correct its leadership's misconduct, BFC officials further “increased their threats and intimidation” toward Dean. Id. ¶ 19.

         As a result of the ongoing harassment, Dean suffered significant health problems, including nausea, anxiety attacks, severe reflux, and acute esophagitis. Id. ¶ 20. In October of 2012, Dean's physician directed Dean to take a leave of absence from work until January 21, 2013. Id. While Dean was on medical leave, the Maryland Institute for Emergency Medical Services Systems initiated another investigation into BFC's alleged misconduct, for which Dean provided testimony. Id. ¶¶ 26-27.

         Upon receiving medical clearance to return to work, Dean informed Fitzgerald that he would like to be placed on the active duty roster. Id. ¶ 28. Initially, Fitzgerald ordered Dean to complete a “skills assessment” before returning to work, but later “retreated from that position and instead told him he would have to have a ‘psychological evaluation.'” Id. Dean subsequently underwent a four-hour psychological evaluation with Michael Finegan, Ph.D. However, Dr. Finegan refused to proceed after discovering that Dean's treating physician already cleared him to return to work. Id. ¶ 29. Several weeks later, Dean underwent a second psychological evaluation with a psychiatrist, “Dr. White, ” who found that Dean was psychologically fit to return to work. Id. ¶ 30.

         In addition to the mental health evaluation, Fitzgerald required Dean to report to Talbot County EMS for training on March 12, 2013, during which Dean would “precept” and complete twelve Advanced Life Support calls before returning to BFC. Id. ¶ 31. Dean found Fitzgerald's requirements unusual, because: (1) Talbot County EMS was 90 minutes from Berlin, and (2) “the requirement of precepting at another department had never been imposed on any prior member.” Id. ¶ 32. Despite his concerns, Dean reported on March 12, 2013. Id. ¶ 33. That same day, BFC fired Tyndall. Id.

         On March 29, 2013, Dean completed his training at Talbot County EMS. Id. ¶ 35. Several days later, however, Dean was injured in a serious car accident that involved a fatality. Id. After consulting with his physician, Dean informed Fitzgerald that he would be out on medical leave until May 14, 2013. Id. ¶ 36. Shortly thereafter, in April of 2013, Fitzgerald informed Dean that he was terminated, “allegedly because the company needed to have its full-time life support providers available for EMS calls.” ECF 11-2 at 2; see also ECF 11, ¶¶ 36, 58.

         On August 27, 2013, Tyndall filed suit against BFC in connection with the above-referenced events. Id. ¶ 41; see Zachery Tyndall v. The Berlin Fire Company, et al., Civil No. ELH-13-2496 (“Tyndall”). In Tyndall, both Tyndall and BFC were represented by the same attorneys involved in this case. Id. ¶ 41. There, this Court denied BFC's motion for summary judgment. See Tyndall, ECF 60 (Memorandum Opinion); ECF 61 (Order). Tyndal subsequently settled in 2015. See Tyndall Docket.

         In this case, Dean's counsel sent BFC's counsel a demand letter on August 2, 2016, offering to settle all claims against BFC for $875, 000.00. ECF 11-1. At some point, BFC's attorney requested additional documentation regarding Dean's period of disability due to the auto accident. See ECF 11-2 at 1. By letter of November 28, 2016, Dean's attorney provided BFC's lawyer with further details and medical documentation. ECF 11-2.

         On an unspecified date, Dean filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). ECF 11, ¶ 42. On February 23, 2017, the EEOC sent Dean a Notice of Right to Sue. Id. ¶¶ 40, 44; see also ECF 11-3. The Notice of Right to Sue provided that Dean's “lawsuit must be filed WITHIN 90 DAYS of [his] receipt of this notice; or [his] right to sue based on this charge will be lost.” ECF 11-3 at 3.

         On March 7, 2017, Dean's counsel sent BFC's counsel a letter. ECF 11, ¶ 45; ECF 11-4.

         He said, in part, ECF 11-4 at 2:

The purpose of my correspondence is to inquire as to whether there is any reasonable expectation of resolution without the necessity of litigation. If your client is interested in mediation, please advise. If I do not hear from you with [sic] next 10 days I will assume that you do not and we will take appropriate action.

         About ten days later, counsel for the parties spoke by telephone, and defense counsel “indicated a desire to mediate the matter.” ECF 11, ¶ 46. Further, Dean alleges that, during that conversation or one “shortly thereafter, ” his lawyer provided defense counsel with the name of a proposed mediator. Id. ¶ 47. According to plaintiff, defense counsel “responded by telephone a short time thereafter indicating that she had approval to mediate, ” but her client did not approve of plaintiff's proposed mediator. Id. ¶ 47.

         In the conversation, defense counsel expressed approval of the federal magistrate who conducted settlement proceedings in Tyndall, and “had done such a good job” in obtaining the settlement. Id. In response, plaintiff claims his lawyer asserted that he could file suit “quickly” so as “to make one available, ” i.e., a federal magistrate judge. Id. At that point, according to plaintiff, counsel for BFC “request[ed] that Plaintiff not file suit as she was confident the matter could be resolved in mediation.” Id. Counsel for BFC then “indicat[ed] she would send other names [of mediators] after she spoke with her insurer and client.” Id. ¶ 48. Significantly, plaintiff asserts that Dean's “counsel did not hear from [defense counsel] in response.” Id. ¶ 48.

         Dean's attorney emailed BFC's counsel on July 20, 2017, providing a list of proposed mediators. ECF 11, ¶ 48; ECF 11-5. He also said, ECF 11-5 at 2: “Please let me know your thoughts.” Notably, defense counsel did not respond. ECF 11, ¶ 48.

         Almost two months later, on September 12, 2017, Dean filed suit. Dean's counsel also sent an email to BFC's counsel on September 13, 2017, advising her that Dean “could wait no longer and ...


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