Way v. Shawnee Twp., Case No 3:14CV2504
| Decision Date | 20 June 2016 |
| Docket Number | Case No 3:14CV2504 |
| Citation | 192 F.Supp.3d 867 |
| Parties | Paul WAY, Plaintiff, v. SHAWNEE TOWNSHIP, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Romin Iqbal, Columbus, OH, Fazeel S. Khan, Blaugrund, Herbert & Martin, Worthington, OH, for Plaintiff.
David A. Riepenhoff, Frank D. Hatfield, Fishel Hass Kim Albrecht, Columbus, OH, for Defendants.
This is a civil-rights action for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. , the Ohio Civil Rights Act, O.R.C. § 4112 et seq. , and 42 U.S.C. § 1983.
Plaintiff Paul Way alleges defendants Shawnee Township, Ohio (Township) and Todd Truesdale, Fire Chief of the Shawnee Township Fire Department (Department), retaliated against him for complaining about alleged discriminatory practices and cultural bigotry in the Department. Way also alleges defendants retaliated against him for exercising his right to free speech under the First Amendment of the United States Constitution.
I have jurisdiction under 28 U.S.C. §§ 1331, 1367.
Pending is defendants' motion for summary judgment. (Doc. 17). Finding it to be without merit, I deny the motion.
Way began working for the Township as a full-time firefighter in May 1999 after interviewing with several Township and Department representatives, including Truesdale. (Doc. 14-9 at 29-30). Over the next approximately seven years, Way received two promotions: the first, to Captain in January 2003; the second, to Platoon Chief in June 2006. (Id. at 30-31).
When Way joined the Department all its firefighters were, like Way, white males. (Doc. 20-1 ¶ 7). According to Way, that situation did not change throughout his thirteen years in the Department.1 (Id. ¶ 8). Way testified he considered that unusual based on his experiences at other fire departments. (Id. ¶ 7).
More unusual, and, he claims, shocking to him, was the common practice of firefighters giving Truesdale, then a Platoon Chief, a Nazi salute when they saw him and referring to him as "Hitler." (Doc. 14-10 at 146-47; Doc. 20-1 ¶ 10). Photographs show firefighters engaging in this conduct in the station, in public areas, at fire sites, on the fire truck, during training and at Department social events.2 (Doc. 20-1 ¶¶ 11-12; Doc. 20-2). Firefighters even gave Truesdale the Nazi salute in the presence of Township Trustees (Trustees). (Doc. 14-10 at 347).
The use of homophobic slurs also was routine in the Department. (Doc. 20-1 ¶ 13; Doc. 14-6 at 115-16). For example, such slurs often appeared on birthday cakes for firefighters. (Doc. 20-1 ¶ 14; Doc. 20-2 at 7, 10, 18). Truesdale himself often referred to Way as a "faggot," though he knew Way's son was gay. (Doc. 14-10 at 175-77).
At the time, the Department did not provide training to employees, new or old, on workplace discrimination and harassment. (Doc. 14-9 at 43-46, 65-66; Doc. 20-1 ¶9; Doc. 14-6 at 60-62, 65-66, 69-70, 82). Way therefore concluded such behavior was part of the Department's accepted culture. (Doc. 14-10 at 147). After some time, it even became normal to him.3 (Id. at 147-48). As Way testified, "[e]verybody else was doing it—that was the culture, you are not going to go against it or you are going to be ostracized and you are not going to last."4 (Id. at 171).
Way claims he began to have misgivings about the culture in 2011 when he became responsible for rewriting the Department's Standard Operating Procedures. (Doc. 14-10 at 148). Around that time, Way was taking online business courses from Columbia Southern University, and was learning about discrimination in the workplace. (Doc. 14-9 at 54-55, 57; Doc. 20-1 ¶ 15). He started to realize that the discriminatory practices and cultural bigotry he had observed and, indeed, in which he had actively joined, could have dire consequences for the Department. (Doc. 14-10 at 148). He therefore started voicing concerns to Truesdale. (Id. at 205).
At first, because Way and Truesdale were friends at the time, "it mainly started out just in conversations." (Id. at 249). For example:
We could be talking about anything, and [I would say], After a while, nothing was done. It was normally, Well, it never got handled. It never got taken care of. It never got addressed.
(Id. ).
Other times, Way would say to Truesdale:
(Id. at 213).
Over time, Way voiced his concerns more aggressively. (Id. at 249). He complained specifically about, inter alia , the lack of female dorms and separate female shower areas, firefighters giving the Nazi salute, photographs on display in the Department kitchen showing firefighters giving the Nazi salute, and birthday cakes decorated with homophobic slurs, swastikas and a model holocaust crematorium.5 (Id. at 197-99, 202, 206). He argued the work environment discriminated against women, homosexuals, "Blacks" and "Jewish people," and could create legal problems for the Department. (Id. at 197-99, 202, 206).
Way asserts Truesdale was "dismissive" of his concerns. (Doc. 20 at 6). According to Way, Truesdale typically responded that such complaints were "not productive," that he did not "want anybody else to know about it," and that "this could cause division in the department,"6 (Id. at 198). He advised Way, "you need to let it go," and "let it roll off your back." (Doc. 14-9 at 62-63).
Nevertheless, Way continued his complaints into 2012. (Doc. 14-10 at 213).
On July 10, 2012, Way and two other Platoon Chiefs received a reprimand for "continued negative bantering by electronic communication"7 in violation of the Department's new policy regarding off-duty electronic communication.8 (Doc. 21-1 ¶ 17; Doc. 20-11 Exs. D, E, F). The next day, Way sent an email to those same Platoon Chiefs expressing his intent to seek legal advice regarding the legitimacy of the reprimand. (Doc. 20-4).
On August 2, 2012, the Trustees, after consulting with Truesdale, placed Way on administrative leave pending an investigation into his conduct.9 (Doc. 14-7 at 192; Doc. 20-5). Truesdale provided Way with a list of fourteen infractions, one of which was the July 10, 2012 incident that led to his reprimand. (Doc. 20-5).
On August 13, 2012, Way, accompanied by counsel, appeared for a pre-disciplinary hearing. (Doc. 20-7). The hearing officer, a local attorney, found that except for one "technical violation"—the statement by Way to the other Platoon Chiefs that he intended to seek legal advice after the reprimand—Way's alleged infractions were unfounded. (Doc. 20-7). The hearing officer "did not find that they were serious violations which exposed the [Department] or any persons in the general public to risk." (Doc. 20-7).
On August 18, 2012, Way renewed his complaints about discriminatory practices and cultural bigotry in the Department in a letter addressed to another Platoon Chief. (Doc. 20-1 ¶ 16; Doc. 14-9 at 137; Doc. 14-11, Ex. Z). He testified he delivered it a few days later to either the Platoon Chief or a representative of his union, the International Association of Firefighters (Union).10 (Doc. 14-9 at 137; Doc. 14-10 at 143, 247, 248).
On September 6, 2012, Truesdale and the Trustees "collectively" decided to demote Way two ranks to that of an entry-level firefighter.11 (Doc. 14-7 at 223-25). Although only the Trustees had the authority to demote Way (Doc. 17-1 ¶ 1), Truesdale admits he was involved in the decision. (Doc. 14-7 at 223-25). The Trustees could have given Way a lighter punishment, but chose not to.12 (Id. ).
Following his September 6 demotion, Way claims he began to suffer from severe stress and anxiety. (Doc. 21-1 ¶ 18). Five days later he sought treatment from a psychiatrist, Dr. Michael Koval. (Doc. 14-10 at 234-37). Way explained his workplace environment and its psychological impact on him. (Id. ). Dr. Koval scheduled an appointment with Way for the following morning, and advised him not to go to work that day. (Doc. 14-10 at 238). Following that advice, Way called in sick for September 12, 2012. (Doc. 14-9 at 99).
After meeting with Way, Dr. Koval diagnosed him with Acute Stress Disorder (DSM-IV code 308.3). (Doc. 20-10). Dr. Koval certified him to be off work for both that day and September 14, 2012, his next scheduled work day. (Doc. 14-10 at 239; Doc. 20-9).
On his way home from Dr. Koval's office, Way stopped for lunch at a local sports bar. (Doc. 20-1 ¶ 19). He had a beer with his lunch. (Doc. 14-11, Exs. S,T). Way went to the same bar for lunch on September 14, 2012—this time having two beers. (Id. ).
Truesdale learned that Way had been at the bar, drinking beer, on both days. He told the Trustees; they, in turn, appointed an investigator to look into the matter. (Doc. 14-7 at 244-45, 251, 253). They also placed Way on administrative leave pending the outcome of the investigation. (Doc. 20-1 ¶ 28).
On September 21, 2015, Way wrote a second complaint letter. (Doc. 14-11, Ex. Y). In it, he asserted, "I strongly believe that your recent actions against me were motivated by personal issues rather than the charges you levied against me in the pre-disciplinary conference." (Id. ). He also again expressed concerns about discriminatory practices and cultural bigotry in the Department. (Id. ).
Way hand delivered the letter to the secretary of the Department. (Doc. 20-1 at 128-31; Doc. 20-11). He included four copies in four separate envelopes, one copy for each Trustee and one copy for Truesdale. (Doc. 14-9 at 128-31; Doc. 20-11).13
On October 18, 2012, Truesdale and the Trustees held a pre-disciplinary...
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