Wyatt v. City of Barre
| Decision Date | 06 August 2012 |
| Docket Number | Case No. 2:11–CV–297. |
| Citation | 885 F.Supp.2d 682 |
| Parties | Rachel WYATT, Plaintiff, v. CITY OF BARRE, Timothy Bombardier, Joe Adlsworth, Robert Howarth, and Cindy Howarth, Defendants. |
| Court | U.S. District Court — District of Vermont |
OPINION TEXT STARTS HERE
Brian P. Monaghan, Esq., Monaghan Safar Dwight PLLC, Nancy G. Sheahan, Kevin J. Coyle, McNeil, Leddy & Sheahan, P.C., Burlington, VT, James F. Carroll, English, Carroll & Boe, P.C., Middlebury, VT, for Plaintiff/Defendants.
Caroline S. Earle, Esq., Ellis Boxer & Blake, Montpelier, VT, Jennifer K. Moore, Esq., Ellis Boxer & Blake, Springfield, VT, for Plaintiff.
Constance T. Pell, Ryan Smith & Carbine, Ltd., Rutland, VT, for Defendants.
Plaintiff Rachel Wyatt has sued the City of Barre/Barre City Fire Department, Chief Timothy Bombardier, Deputy Chief Joe Aldsworth, Captain Robert Howarth and Call Force Firefighter Cindy Howarth for actions taken against her during her time as an employee of the Barre City Fire Department (“BCFD”). Plaintiff has alleged 14 counts: (1) Unlawful Sex Discrimination in Violation of Title VII, (2) Breach of Contract, (3) Wrongful Discharge in Violation of Public Policy, (4) Violation of Rights under the First Amendment, (5) Violation of Rights under the Vermont Constitution, Chapter 1, Article 13, (6) Violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510 et seq., (7) Violation of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., (8) Tortious Invasion of Privacy, (9) Violation of Due Process Clause of the U.S. Constitution, (10) Violation of Due Process under the Vermont Constitution, (11) Violation of Vermont's Occupational Safety and Health Act (“VOSHA”), Vt. Stat. Ann. tit. 21, § 221 et seq., (12) Infliction of Emotional Distress, (13) Unlawful Conspiracy, and (14) Violation of Vermont's Fair Employment Practices Act (“VFEPA”), Vt. Stat. Ann. tit. 21, § 495 et seq.
BCFD has filed a Motion for Judgment on the Pleadings under Fed.R.Civ.P. 12(c)for all counts against it. It also requests its name be removed from the caption.
The City of Barre has filed a Motion for Judgment on the Pleadings for Counts Six, Seven, Eight and Thirteen.
Defendant Timothy Bombardier has filed a Motion for Judgment on the Pleadings for Counts Two, Three, Five through Eight, and Ten through Fourteen.
Defendant Joe Aldsworth had previously filed a Motion to Dismiss Counts Two, Three, and Five through Fourteen. The Court granted dismissal on Counts Two, Three, and Six through Ten. Wyatt v. City of Barre/Barre City Fire Dept., No. 2:11–CV–00297, 2012 WL 1435708, at *9 (D.Vt. Apr. 25, 2012). The Court denied dismissal on Counts Five and Eleven through Fourteen. Wyatt, 2012 WL 1435708, at *9. Deputy Chief Aldsworth then filed a Motion for Judgment on the Pleadings for Count Eleven.
Defendant Robert Howarth has filed a Motion for Judgment on the Pleadings for Counts One, Two, Three, Five through Twelve, and Fourteen.
Defendant Cindy Howarth has filed a Motion for Judgment on the Pleadings for Counts One through Twelve, and Count Fourteen.
All facts in this section are taken from Plaintiff's Complaint and will be accepted as true for the purposes of this motion. Ashcroft v. Iqbal, 556 U.S. 662, 666, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
All individual parties to this lawsuit are employed by BCFD in some capacity. Timothy Bombardier is Chief of the Barre City Police and Fire Departments. He also oversees Barre's EMT services which are combined with the Fire Department. Chief Bombardier was appointed to his position after Plaintiff was hired.
Joe Aldsworth is the Deputy Chief of BCFD. At the time of Plaintiff's hiring, he was a firefighter/paramedic but was later promoted.
Robert Howarth is a Captain in BCFD. He was a Lieutenant at the time of Plaintiff's hiring and was frequently her direct supervisor in both capacities. Cindy Howarth is Captain Howarth's wife and also serves as a Call Force Firefighter.
On March 25, 2009, Plaintiff was hired as a BCFD Call Force Firefighter. The hiring required that Plaintiff pass a written exam to obtain either EMT–B certification or Firefighter–1 Certification within 18 months. Plaintiff was issued a pager which transmitted several distinct tones depending on the nature of the emergency call. Plaintiff responded to all types of calls regardless of certification, knowing that she could cover for others at the station even if she was not yet certified to respond at the scene.
According to Plaintiff, Robert and Cindy Howarth created an atmosphere in the station that was severely and pervasively offensive, demeaning and hostile to her. The Howarths' conduct included calling Plaintiff a “dumb blonde” and stating publicly their belief that Plaintiff was “just playing firefighter to find a husband.” Cindy Howarth frequently stared at Plaintiff in an intimidating and uncomfortable fashion. Cindy Howarth was also responsible for hiding and/or disposing of Plaintiff's time sheets, her lunch, and on at least one occasion, her department-issued firefighting gear. Captain Howarth refused to interact with Plaintiff altogether and would leave a lunch table if she sat down.
Plaintiff frequently complained about the Howarths' actions to Chief Bombardier, but she believes that the conduct escalated after the complaints. Cindy Howarth filed a report that Plaintiff had engaged in inappropriate contact with a married male firefighter during a drill. The complaint was investigated and proven to be false, but Plaintiff found it degrading and humiliating. Cindy Howarth publicly posted demeaning statements about Plaintiff on Facebook, saying that “women like her give us real, women firefighters a bad name.” On one occasion, Captain Howarth stated, in the presence of others, that Plaintiff's perfume was too strong and she would not be allowed to work unless she went home and showered.
Plaintiff enlisted the help of Deputy Chief Aldsworth who had witnessed the Howarths' treatment towards her. Plaintiff had a meeting with Deputy Chief Aldsworth and Chief Bombardier and the Chief indicated he would bring a mediator into the station to resolve the conflict. A mediator did come to the station once and provided department employees with questionnaires to complete. Mediation proved to be unsuccessful.
After the meeting, Captain Howarth refused to allow Plaintiff to respond to calls on multiple occasions, depriving her of the pay she otherwise would have earned. In one instance, he ordered Plaintiff to return home after she had arrived at the station, saying in front of other Department personnel that she was “useless.” In another, Captain Howarth laughed mockingly when others told him Plaintiff had arrived at the station and he refused to allow her to respond to the call.
On February 23, 2010, Plaintiff had a meeting with Chief Bombardier during which he suspended her from responding to calls until she received her EMT–B Certification. At this point, Plaintiff still had seven months left to complete her certification within 18 months of her hiring. At the time of the suspension, there were other Call Force Firefighters without EMT–B Certifications who were not suspended and the 18–month period for certification had not been shortened for any other employee. Without Plaintiff's knowledge, Chief Bombardier directed Captain Keith Cushman to send a staff-wide memo informing BCFD employees that Plaintiff was not permitted in any part of the station other than the classroom and the restroom.
Deputy Chief Aldsworth met with Plaintiff during her suspension to help her study for the written EMT–B exam. Deputy Chief Aldsworth began to make unwelcomed sexual comments and advances towards her. Plaintiff reported Deputy Chief Aldsworth's sexual harassment to Chief Bombardier on May 6, 2010.
After three months, Chief Bombardier revoked Plaintiff's suspension and she returned to the station with full access to every room. After she returned, Deputy Chief Aldsworth informed Plaintiff that she would have to complete forty hours of field training before she could respond to any calls. Once Plaintiff completed field training, Deputy Chief Aldsworth informed her that she would remain on restricted duty until she completed Emergency Vehicle Operator training, even though Plaintiff had already received this training.
In July 2010, BCFD circulated a memo asking for female volunteers in “Rosie's Girls,” a program designed to teach young girls that women have a place in fire service and other male-dominated professions. Deputy Chief Aldsworth, with Chief Bombardier's endorsement, refused to let Plaintiff participate in the program.
Also in July 2010, Plaintiff made an anonymous call to the State's Emergency Medical Services expressing concern about an EMT colleague's fitness for duty. Plaintiff had previously seen the colleague break down emotionally at a response scene and Plaintiff was aware that the colleague had been hospitalized for a suicide attempt.
On August 31, 2010, Plaintiff met with Chief Bombardier and Deputy Chief Aldsworthabout the anonymous phone call. When asked directly, Plaintiff denied making the call. In response to the denial, Plaintiff was suspended pending an investigation. As part of the investigation, Chief Bombardier obtained a copy of the recorded call and played it for four other firefighters, including Deputy Chief Aldsworth, to identify the voice on the call. Upon being satisfied that Plaintiff was the voice on the recorded call, Chief Bombardier fired Plaintiff for lying. Plaintiff alleges that the stated grounds were a pretext and the firing was actually retaliation for placing the call and for her previous reports of sexual harassment.
All of the pending motions are for judgment on the pleadings under Fed.R.Civ.P. 12(c). In deciding a...
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