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Berlin, Ocean Pines News Worcester County Bayside Gazette Logo Berlin, Ocean Pines News Worcester County Bayside Gazette


Berlin Fire Co. settle suit with fmr. employee

(Oct. 15, 2015) U.S. District Court Judge Ellen L. Hollander Last Wednesday signed a settlement order that will end the two-year legal battle between former Berlin Fire Company employee Zackery C. Tyndall and the Berlin Fire Company.
Tyndall, a former EMT employed at the fire company and a volunteer fireman there as well, filed a complaint on Aug. 27, 2013 alleging that members of the company tried to force him out by harassing him.
In addition the company, other defendants named in his lawsuit were volunteer fireman Byron Trimble, company employees Derek Simpson and Norris Philip Donohue Sr. and fire company President David A. Fitzgerald.
The complaint for damages, filed under the Civil Rights Act, alleged a “deliberate and conscious effort” by the defendants to harass and intimidate Tyndall and “drive him from the Department because of the individual Defendant’s perception of his sexual orientation.”
According to the complaint, Tyndall maintained he was not a homosexual and that the defendants used verbal slurs and threats of violence to intimidate him.
The complaint went on to allege that Tyndall was assigned to “demeaning” tasks, including cleaning latrines and picking up trash in order to humiliate him “in an attempt to make him quit.” Those actions, according to the complaint, led to “severe anxiety and depression.”
In 2012, the town of Berlin conducted an internal investigation that led to Donohue’s dismissal. According to the complaint, however, Trimble and Simpson continued their harassment and recruited “other members of the Department” to engage in similar activities.
Tyndall had requested $2 million in compensatory damages and $6 million in punitive damages in the original complaint.
On July 16 of this year, Hollander rejected the company’s motion to dismiss the complaint.
The Bayside Gazette, on July 23, reported that Hollander’s 63-page opinion included an evaluation by a clinical psychologist that concluded Tyndall had “developed a Major Depressive Disorder … experienced through his affiliation with the fire company.”
Hollander wrote in the opinion, “Tyndall has produced evidence that Trimble and Simpson—men almost twice his age, and in supervisory positions—subjected him to a prolonged, continuous barrage of derogatory remarks, to which Tyndall repeatedly objected.” Hollander added, “Considering the facts … a reasonable juror could find that such conduct was deliberate, intentional and outrageous … [and] extreme, beyond any typical workplace offenses or indiscretions, and ‘utterly intolerable in a civilized community.’”
She also added, “To be sure, Tyndall may not succeed in his claim. But, it is not the province of the court to make factual findings or to resolve factual disputes.”
In September, a trial date was set for Jan. 11-22, 2016, at U.S. District Court in Baltimore.
Then, following a conference on Oct. 7 presided over by Judge Stephanie Gallagher, a settlement order was signed. Details of the settlement were not disclosed.
According to the order, the action was dismissed and each party was ordered to pay “its own costs unless otherwise agreed.” The order added that if details of the settlement were not fulfilled within 30 days, the case could be reopened.
Attorneys from both parties did not return calls for comment.