(Dec. 31, 2015) The two-year-old, $8 million lawsuit filed by Zackery Tyndall against the Berlin Fire Company was settled this year, although the relationship between the town and the BFC remains on unsteady ground.
In March, the Gazette reported that a major new housing development had reopened old wounds. The town and county both gave preliminary support to the project, located on Seahawk Road and being developed by Rinnier Properties, but the fire company wrote a letter to the county commissioners criticizing the town for not consulting them on the matter.
“Our concern is the continued development within the town and no planning for the fire company’s future,” Fire Company President David Fitzgerald said. “Anybody with any bit of common sense would understand that those people are going to get sick, people are going to fall down, they’re going to need an ambulance, the fire alarms are going to go off – either by accident or by a real fire – and we’re going to be busier.”
Fitzgerald said several fire company facilities and vehicles were in disrepair, notably Station Three near the annexation site.
“You can stand inside the building and look outside through the holes in the wall,” Fitzgerald said. “We never know what we’re getting from the town anymore, and at some point we’re going to run out of resources.”
Fitzgerald said he had no idea what caused the rift between the town and the fire company, and lamented that it was not invited to participate in Town Council meetings.
Berlin Mayor Gee Williams, however, said he found it ironic that the only organization the town consistently seems to have trouble with is its fire department.
“The Town of Berlin works extremely well and has an outstanding reputation for working with partners, not only governmental partners at the county, state and federal level, we have an outstanding relationship with nonprofits that serve our community, with both the public education system and the preparatory school, and with the faith-based organizations,” he said. “That doesn’t mean that we never have a disagreement, but it means we work very closely and we get a lot done together.
“It seems to be a contrarian relationship with the working relationship we have with every other organization, regardless of what kind it is,” Williams continued.
Williams said the problems with the fire company were “self-inflicted.”
“I believe there are some serious organizational and leadership problems,” he said. “That’s their privilege to do that, but it’s not going to get anything accomplished.”
He also singled out Fitzgerald.
“Obviously there is a problem in leadership,” he said. “I kept telling the council, ‘they’re going to do the right thing, they’re going to do the right thing, they’re going to do the right thing.’ And instead all I feel like is, at least under Mr. Fitzgerald’s leadership, they keep stabbing us in the back.”
News from the trial itself was scarce until, in July, U.S. District Court Judge Ellen Lipton Hollander issued a memorandum opinion denying a motion for partial summary judgment entered by the Berlin Fire Company, the defendant of a case originally filed by Tyndall, a former BFC employee, in Aug. 2013.
Fitzgerald was named in the suit, along with volunteer fireman Byron Trimble and company employees Derek Simpson and Norris Philip Donohue Sr.
Filed under the Civil Rights Act, the complaint 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 court documents, Tyndall maintained he was not homosexual and that his coworkers 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 filing.
In Hollander’s 63-page opinion, the judge noted that an evaluation by a clinical psychologist included in the memorandum concluded that Tyndall “developed a Major Depressive Disorder … experienced through his affiliation with the fire company.”
In the judge’s summary Hollander wrote, “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.” Lipton added that the alleged conduct “occurred in two workplaces … and spanned multiple years.”
She 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.”
Hollander signed a settlement order for the suit in October, and the case appeared to be drawing to a close, but an unspecified dispute caused it to drag on for another month.
Finally, in November the Gazette reported that the case had been resolved.
Details of the settlement were not disclosed, but 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, leading to the motion to reopen.
Speaking during a phone interview in November, attorney James L. Otway, representing Tyndall, said he could not discuss the final details of the settlement, but offered, “The case has been resolved to our satisfaction.”
“There was an issue from the pleadings that has been resolved,” Otway said. “The case, if it’s not closed, should closed any day now.”
Otway said he did not anticipate any further actions in the case.
Also in November, Williams told the Gazette he hoped the conclusion of the case would give the fire company “an opportunity to evaluate all that has happened.”
“I hope they took a good, fair look at how did this happen, what happened and how will they come back and become a part of 21st century Berlin,” he said. “The community is moving forward, the community is positive, the community wants them to be successful, but the community also has values that are important to our quality of life.”
Williams said the situation with Tyndall “created a wound” between the town and the fire company, but that “the wound is beginning to heal.”
“I hope, quite frankly, that it heals quickly, but it’s more important that it heals thoughtfully so that the entire community ends up in a better place,” Williams said. “The community’s values were certainly validated through this process.
“I’d like to just see it get caught up to the times we’re living in,” Williams continued. “I would love to see the Berlin Fire Company not just as firefighters – not just as personnel – that’s not the issue. If they wish to be supported by the citizens of Berlin then I think they need to embrace the values of our community, which are not bad. In fact, they’re a great example for any small American town.”
In March, the Gazette reported that a major new housing development had reopened old wounds. The town and county both gave preliminary support to the project, located on Seahawk Road and being developed by Rinnier Properties, but the fire company wrote a letter to the county commissioners criticizing the town for not consulting them on the matter.
“Our concern is the continued development within the town and no planning for the fire company’s future,” Fire Company President David Fitzgerald said. “Anybody with any bit of common sense would understand that those people are going to get sick, people are going to fall down, they’re going to need an ambulance, the fire alarms are going to go off – either by accident or by a real fire – and we’re going to be busier.”
Fitzgerald said several fire company facilities and vehicles were in disrepair, notably Station Three near the annexation site.
“You can stand inside the building and look outside through the holes in the wall,” Fitzgerald said. “We never know what we’re getting from the town anymore, and at some point we’re going to run out of resources.”
Fitzgerald said he had no idea what caused the rift between the town and the fire company, and lamented that it was not invited to participate in Town Council meetings.
Berlin Mayor Gee Williams, however, said he found it ironic that the only organization the town consistently seems to have trouble with is its fire department.
“The Town of Berlin works extremely well and has an outstanding reputation for working with partners, not only governmental partners at the county, state and federal level, we have an outstanding relationship with nonprofits that serve our community, with both the public education system and the preparatory school, and with the faith-based organizations,” he said. “That doesn’t mean that we never have a disagreement, but it means we work very closely and we get a lot done together.
“It seems to be a contrarian relationship with the working relationship we have with every other organization, regardless of what kind it is,” Williams continued.
Williams said the problems with the fire company were “self-inflicted.”
“I believe there are some serious organizational and leadership problems,” he said. “That’s their privilege to do that, but it’s not going to get anything accomplished.”
He also singled out Fitzgerald.
“Obviously there is a problem in leadership,” he said. “I kept telling the council, ‘they’re going to do the right thing, they’re going to do the right thing, they’re going to do the right thing.’ And instead all I feel like is, at least under Mr. Fitzgerald’s leadership, they keep stabbing us in the back.”
News from the trial itself was scarce until, in July, U.S. District Court Judge Ellen Lipton Hollander issued a memorandum opinion denying a motion for partial summary judgment entered by the Berlin Fire Company, the defendant of a case originally filed by Tyndall, a former BFC employee, in Aug. 2013.
Fitzgerald was named in the suit, along with volunteer fireman Byron Trimble and company employees Derek Simpson and Norris Philip Donohue Sr.
Filed under the Civil Rights Act, the complaint 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 court documents, Tyndall maintained he was not homosexual and that his coworkers 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 filing.
In Hollander’s 63-page opinion, the judge noted that an evaluation by a clinical psychologist included in the memorandum concluded that Tyndall “developed a Major Depressive Disorder … experienced through his affiliation with the fire company.”
In the judge’s summary Hollander wrote, “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.” Lipton added that the alleged conduct “occurred in two workplaces … and spanned multiple years.”
She 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.”
Hollander signed a settlement order for the suit in October, and the case appeared to be drawing to a close, but an unspecified dispute caused it to drag on for another month.
Finally, in November the Gazette reported that the case had been resolved.
Details of the settlement were not disclosed, but 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, leading to the motion to reopen.
Speaking during a phone interview in November, attorney James L. Otway, representing Tyndall, said he could not discuss the final details of the settlement, but offered, “The case has been resolved to our satisfaction.”
“There was an issue from the pleadings that has been resolved,” Otway said. “The case, if it’s not closed, should closed any day now.”
Otway said he did not anticipate any further actions in the case.
Also in November, Williams told the Gazette he hoped the conclusion of the case would give the fire company “an opportunity to evaluate all that has happened.”
“I hope they took a good, fair look at how did this happen, what happened and how will they come back and become a part of 21st century Berlin,” he said. “The community is moving forward, the community is positive, the community wants them to be successful, but the community also has values that are important to our quality of life.”
Williams said the situation with Tyndall “created a wound” between the town and the fire company, but that “the wound is beginning to heal.”
“I hope, quite frankly, that it heals quickly, but it’s more important that it heals thoughtfully so that the entire community ends up in a better place,” Williams said. “The community’s values were certainly validated through this process.
“I’d like to just see it get caught up to the times we’re living in,” Williams continued. “I would love to see the Berlin Fire Company not just as firefighters – not just as personnel – that’s not the issue. If they wish to be supported by the citizens of Berlin then I think they need to embrace the values of our community, which are not bad. In fact, they’re a great example for any small American town.”