Shanks v. Village of Catskill Board of Trustees, 1:06-CV-1399 (GLS/DRH).

653 F.Supp.2d 158

Joel SHANKS and Ricky Shanks, Plaintiffs, v. VILLAGE OF CATSKILL BOARD OF TRUSTEES; Village of Catskill Fire Dept.; Village of Catskill Fire Company Inc.; Randy Ormerod; Floyd Prince, Jr.; Jack Ormerod, Sr.; Neal Russell; John Darling, 3rd; Jim Chewens; Steve Schultz; Hank Coons; John Dees; Rick Chewens; Harold Rivenburg; Forest Cotton; Angelo W. Amato; Joseph Kozloski; Paul Overbaugh; Vincent Seeley and Paul D. Ormerod, Jr., Defendants.

No. 1:06-CV-1399 (GLS/DRH).

United States District Court, N.D. New York.

September 2, 2009.

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Office of Robert N. Isseks, Robert N. Isseks, Esq., of counsel, Middletown, NY, Office of Evan M. Foulke, Evan M. Foulke, Esq., of counsel, Goshen, NY, for the Plaintiffs.

Office of M. Randolph Belkin, M. Randolph Belkin, Esq., of counsel, Latham, NY, Carter, Conboy Law Firm, William T. Little, Esq., of counsel, Albany, NY, for the Defendants.

DECISION AND ORDER

GARY L. SHARPE, District Judge.

I. Introduction

This First Amendment retaliation action presents another example of what happens when grown men act like five year olds. Ex-volunteer firefighters Joel and Ricky Shanks contend that defendants subjected them to harassment and threats because they reported safety violations by the Catskill Fire Company (the "Company") to the U.S. Occupational Safety and Health Administration ("OSHA") and the NYS Public Employee Safety and Health Bureau ("PESH"). Pending are all defendants' motions for summary judgment seeking dismissal of plaintiffs' action. (See Dkt. Nos. 52, 53.) For the reasons that follow the motions are denied.

II. Facts¹

At all times pertinent to this action, plaintiffs Ricky and Joel Shanks were volunteer firefighters for the Village of Catskill, the defendant Catskill Fire Department and the defendant Company. (See Am. Compl. ¶ 25, 26; Dkt. No. 30.) Defendants Jim Chewens, Forest Cotton, Angelo W. Amato, Joseph Kozloski and Vincent Seeley (collectively "Village Board defendants") are all members of the defendant Village of Catskill Board of Trustees. (See id. at ¶¶ 11, 15-17, 20.) Defendants Steve Schultz, Hank Coons, Rick Chewens, Paul Overbaugh and Harold Rivenburg (collectively "Company Board defendants") are all Board members of the Company. (See id. at ¶¶ 12-14, 18-19.) The remaining defendants are all firefighters and officers in the Company (collectively "defendant firefighters"). (See id. at ¶¶ 5-10, 21.)

On October 4, 2005, Joel Shanks anonymously reported multiple safety violations allegedly committed by the Company to OSHA and PESH. (See id. at ¶ 27.) These violations included outdated aerial ladder inspection, lack of safety equipment, firefighters with facial hair wearing "SCBA's," outdated equipment, lack of training and standards and failure to follow OSHA standards. (See id.) Thereafter, the following events, among others, occurred:

• At a firefighter meeting on October 4, 2005, Company Chief Randy Ormerod told the firefighters to keep their mouths shut, and Village Board Member and Fire Chairperson, Jim Chewens, indicated that when they found out who filed the complaint they were "going to take care of business." (See id. at ¶ 28.)

• During an October 26, 2005 PESH investigation, Second Lieutenant John Dees told Joel Shanks that whoever made the complaint was going to be thrown out. (See id. at ¶ 29.)

• At a fireman's funeral in October 2005, Randy Ormerod stated to firemen and civilians that if he became a paid village fire chief he would "throw out the scumbag Shanks boys." (See id. at ¶ 30.)

• Since October or November of 2005, defendants have refused to issue plaintiffs firefighter shields for their helmets, to place them on the Fire Department website list of members, or to qualify them as ladder truck drivers even though they had passed the necessary road test. (See id. at ¶¶ 31, 32, 33.)

• From November of 2005 to March 14, 2006, the President of the Company Board, Harold Rivenburg, and Company Board Member, Hank Coons, frequently stated they were in the process of creating a disharmony law in order to throw out those who reported violations. (See id. at ¶ 34.)

In December and January of 2006, Joel Shanks filed complaints with PESH regarding harassment by defendants. (See id. at ¶¶ 36-37.) In January of 2006, Ricky Shanks also submitted a complaint with PESH about safety violations at the Catskill Firehouse, which included improper vehicle maintenance, unqualified operators, un-repaired equipment, falsification of paper work and outdated aerial ladder inspections. (See id. at ¶ 38.) These complaints were made anonymously. Afterwards the following events, among others, occurred • At a January 2006 Company meeting the President of the Village Board, Vincent Seeley, as well as Randy Ormerod, Jim Chewens and Rivenburg all threatened to punish whoever made the safety complaints while staring directly at Joel Shanks. (See id. at ¶ 42.)

• Company Captain Neal Russell and Jack Ormerod would assign plaintiffs menial tasks normally performed by less experienced or probationary firefighters. (See id. at ¶¶ 49, 74.)

• Steve Schultz, a Company Board Member, would call plaintiff² a "rat" and "scumbag" at Sunday morning breakfast. (See id. at ¶ 50.)

• In January of 2006 Seeley stated that he was going to find out who turned in the Village and "they were going to have hell to pay." (See id. at ¶ 51.)

• In February of 2006, Dees told Joel Shanks that he had to wear a new shield on his helmet. When Shanks noted other noncomplying helmets Dees began cursing Shanks, said he was nothing but a troublemaker, and stated that Shanks should be reported "to the village or PESH." Darling and Rivenburg were both present and laughing during this occurrence. On March 2, 2006, Shanks received a letter stating he had to appear in front of the Board of Directors of the Catskill Fire Company regarding his helmet shield. (See id. at ¶¶ 54, 55.)

In addition to the above, plaintiffs were frequently subjected to thinly veiled physical threats, were harassed with insults such as "rats," "scumbags," and "trouble makers," and were ostracized by the other firefighters. (See id. at ¶¶ 44, 46, 48.)

On March, 3, 2006, the NYS Department of Labor informed the Company that Joel Shanks was alleging discrimination by the Company due to his PESH complaint. (See Def. SMF ¶ 11; Dkt. No. 53:2.) Around this time, Joel Shanks also voiced concern for his safety to Seeley and Village Board member Forest Cotton. (See Def. SMF ¶ 5; Dkt. No. 52:2.) On March 13, 2006, the Village Board defendants unanimously voted to place Joel Shanks on administrative leave with full benefits pending completion of an investigation into his allegations of being harassed and not feeling safe. (See Am. Compl. ¶ 57; Dkt. No. 30.) He was advised not to participate in any Company activities and was removed from the active firefighters list. (See id. at ¶ 59.) After Joel Shanks was placed on administrative leave, the following events, among others, occurred:

• Company firefighters, including Dees, Jack Ormerod and Paul Overbaugh, would drive by or park outside the Shanks' homes and make obscene gestures, yell insults and threats, and/or blast air horns and sirens late at night. (See id. at ¶¶ 60, 63, 67, 70-71, 80, 98.)

• On June 14, 2006, Randy Ormerod called the police after Joel Shanks drove onto the Catskill Firehouse premises. Shanks was threatened with arrest and made to leave the property. (See id. at ¶ 69.)

• In October of 2006, Joel Shanks received an invitation to the Company's annual banquet. Approximately two weeks later, Rivenburg told Shanks that the invitation was sent in error and that Shanks would be asked to leave or escorted off the premises by police if he attempted to attend. (See id. at ¶ 75.)

• On November 13, 2006, Seeley made a speech at the annual banquet in which he stated that the "disgruntled fireman" had been run off, would not be allowed back, and that the fire department was better off without them. (See id. at ¶ 78.)

• In January of 2007, Ricky Shanks' fire helmet was stolen from the firehouse. Assistant Company Fire Chief Floyd Prince, Jr., refused to issue Shanks a new helmet until PESH demanded he do so. (See id. at ¶¶ 86-89.)

In addition to the above, Ricky Shanks continued to be assigned menial tasks and was subjected to verbal harassment by his fellow firefighters.

On June 23, 2007, Ricky Shanks responded to a boat crash on the Hudson River. (See id. at ¶ 90.) While he attempted to help from the shore, members of the Company who were on a rescue boat continually yelled for him not to jump into the water. (See Def. Ex. P at 109-114; Dkt. No. 52:19.) Due to all the noise Shanks yelled "shut up" on the scene. (See id.) After this incident, Chewens,³ Prince, Jack Ormerod, Rivenburg and other firefighters met at the firehouse and then walked in a line past Ricky Shanks with smirks on their faces, while another firefighter stated "we got him out now." (See Am. Compl. ¶ 92; Dkt. No. 30.) Dees and other Company firefighters then falsely claimed that Shanks had disobeyed orders not to enter the water during the rescue, and in response to such orders had stated "shut the fuck up. I don't need to listen to you." (See Am. Compl. ¶¶ 92-94; Dkt. No. 30, Def. Ex. P at 109-114; Dkt. No. 52:19.) That same day Rivenburg issued a letter ordering Ricky Shanks to appear before the Company Board on charges arising out of this incident. (See Am. Compl. ¶ 95; Dkt. No. 30.) After a Company Board hearing on July 3, 2007, Shanks was suspended for thirty days. (See id. at ¶¶ 96-97.)

On September 25, 2007, Ricky Shanks received another letter from Rivenburg directing him to appear before the Company Board on November 27, 2007, to face charges for violating the Company's standard operating procedures, making derogatory remarks about members of the Company, and for engaging in conduct which was prejudicial to the best interest of the...