CATSKILL FIRE COMPANY INC., RANDY ORMEROD,
FLOYD PRINCE, JR., JACK ORMEROD SR.,
NEAL RUSSELL, JOHN DEES, JOHN DARLING 3RD,
JIM CHEWENS, STEVE SCHULTZ, HANK COONS,
RICK CHEWENS, HAROLD RIVENBURG,
COTTON, ANGELO W. AMATO, JOSEPH KOZLOSKI,
PAUL OVERBAUGH and VINCENT SEELEY,
Plaintiffs, JOEL SHANKS and RICKY SHANKS, by their attorneys, FOULKE LAW OFFICES, complaining of the defendants, alleges as follows:
1.At all times hereinafter mentioned, plaintiff, Joel Shanks (“Joel Shanks”), is an individual residing in the
, State of County of Greene . New York
2. At all times hereinafter mentioned, plaintiff, Ricky Shanks (“Ricky Shanks”), is an individual residing in the
3. At all times mentioned, the
4. At all times hereinafter mentioned,
5. Defendant Randy Ormerod was at all times relevant to this action the Chief at the Catskill Fire Company in the
6. Defendant Floyd Prince Jr. was at all times relevant to this action the Assistant Chief at the Catskill Fire Company in the
7. Defendant Jack Ormerod Sr. was at all time relevant to this action the 2nd Assistant Chief at the Catskill Firehouse in the
8. Defendant Neal Russell was at all times relevant to this action the Captain at the Catskill Fire Company in the
9. Defendant John Dees was at all times relevant to this action the 2nd Lieutenant at the Catskill Fire Company in the
10. Defendant John Darling 3rd was at all times relevant to this action the 1st Lieutenant at the Catskill Fire Company in the
11. Defendant Fire Chair Person Jim Chewens was at all times relevant to this action the Fire Chair Person for the
12. Defendant Steve Schultz was at all times relevant to this action a Board Member of the
13. Defendant Hank Coons was at all times relevant to this action a Board Member of the
14. Defendant Rick Chewens was at all times relevant to this action a Board Member of the
15. Defendant Forest Cotton was at all times relevant to this action a Board Member and Trustee of the
16. Defendant Angelo W. Amato was at all times relevant to this action a Board Member and Trustee of the
17. Defendant Joseph Kozloski was at all times relevant to this action a Board Member and Trustee of the
18. Defendant Harold Rivenburg was at all times relevant to this action the President of the Village of Catskill Fire Company. Rivenburg is being sued in his individual capacity.
19. Defendant Paul Overbaugh was at all times relevant to this action a Board Member of the Catskill Fire Company. Overbaugh is being sued in his individual capacity
20. Defendant Vincent Seeley was at all times relevant to this action the President of the
21. At all tmes mentioned herein, defendants and each of them acted under color of state law.
22. This is a civil action authorized by 42 U.S.C. § 1983 seeking declaratory and injunctive relief and compensatory and punitive damages to redress the deprivations, under the color of state law, of rights, privileges, and immunities secure to plaintiff by the First and Fourteenth Amendments to the United States Constitution. Jurisdiction is conferred by 28 U.S.C. §§ 1331, 1343, and 2201. Plaintiffs also invoke this Court’s supplemental jurisdiction over plaintiffs’ claims under N.Y.S. Executive Law § 740.
23. This action is properly filed in the United States District Court forthe Northern District of New York, as authorized by 28 U.S.C. § 1391, inasmuch as jurisdiction of this action is not founded on diversity of citizenship, each claim arose within the Northern District of New York and the defendants’ principal place of business is located in the Northern District of New York.
25. Since 1997, Ricky Shanks has been and continues to be a volunteer firefighter for the Village of Catskill and the Catskill Fire Department and, as such, an “employee” of said Village and Department within the meaning of Labor Law § 740(1)(a). He is a graduate of
26. On October 4, 2005, Joel Shanks reported to the United States Department of Labor, Occupational Safety and Health Administration (“OSHA”) and the New York State Department of Labor, Public Employee Safety and Health Bureau (“PESH”) numerous safety violations committed by the Catskill Fire Company. These reported safety 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. The online OSHA complaint form used by Joel Shanks is attached as Exhibit A.
27. Also on or about
28. On or about
29. In or about October, 2005, while attending a funeral for a fireman in Cairo, New York, defendant Randy Ormerod stated to firemen and civilians that if he ever became a paid Village Fire Chief “the first thing he would do is throw out the scumbag Shanks’ boys”.
30. In October 2005, defendants repeatedly refused to issue firefighter shields for plaintiffs’ helmets while providing such shields to other firefighters.
31. Since October, 2005, defendant Jack Ormerod has refused to place Joel Shanks, Brian Shanks, Rick Shanks and Tom Birk on the Fire Department website list of members.
32. Since November 2005, defendant Randy Ormerod has refused to qualify both Joel Shanks and Ricky Shanks as a drivers on the ladder truck even though both Joel Shanks and Ricky Shanks took the road test and passed several times.
33. From about November 1, 2005 to March 14 2006, defendants Hank Coon and Harold Rivenburg frequently stated that they were in the process of creating a disharmony law in order to “throw out” anyone who caused disharmony at the Catskill Firehouse by “turning them in”.
34. From November 1, 2005 to March 14, 2006, during monthly Fire Company meetings, firefighters, including the defendants, would advise anyone who did not like the way the department was run to quit and described what they were going to do if they found out who turned them in.
37. In January 2006, Ricky Shanks submitted to PESH a complaint about safety violations at the Catskill Firehouse. These reported safety violations included vehicle maintenance, operator qualifications, un-repaired equipment, falsification of paper work/reports and outdated aerial ladder inspection. A copy of this complaint is attached as Exhibit D.
38. All or some of the aforementioned reports, complaints and information provided by plaintiffs to OSHA and PESH involved matters of public concern and dangers to public health and safety, including, but not limited to activities, policies and/or practices of the Village of Catskill and the Catskill Fire Department that are/were in violation of law, rule or regulation which violation(s) create(d) and present(d) substantial and specific dangers to the public health or safety, and plaintiffs’ acts of providing such reports and information constituted speech protected by the First Amendment and N.Y.S. Executive Law § 740.
39. In retaliation against plaintiffs for their having exercised their First Amendment rights to freedom of speech by providing the aforementioned reports, complaints and information to OSHA and PESH, and for the purpose of deterring plaintiffs and others from providing such information in the future, defendant Catskill Fire Company, with the assistance and cooperation of the defendants Randy Ormerod, Floyd Prince Jr., Jack Ormerod Sr., Neal Russell, John Dees, John Darling 3rd , Jim Chewens, Steve Schultz, Hank Coons, Rick Chewens, Harold Rivenburg, Paul Overbaugh and Vincent Seeley, continued to threaten, harass, intimidate and punish plaintiff by engaging in the following.
40. Since January of 2006, defendants have carried out a persistent policy, practice and course of conduct designed to ostracize plaintiffs from any meaningful participation in Catskill Firehouse activities and events.
41. In January 2006 at a fire company meeting, defendants Vincent Seeley, Randy Ormerod and Jim Chewens and Harold Rivenburg all threatened and/or affirmed that they were going to punish whoever made the safety complaints while staring directly at plaintiff Joel Shanks.
42. On or about
43. On a daily basis since January, 2006, the defendants and volunteer firefighters have cursed, yelled, threatened, and harassed plaintiffs with statements such as, “The Shanks are fucking rats and are going to get their asses kicked,” “If the scumbags don’t like it here they should leave!”, “Their turn is coming”, “Why did Joel do this, he is never going to hold any office in this company now!” and “If Joel ever says anything about me I will beat the shit out of him.”
44. Defendants have continuously tolerated, permitted and encouraged other firefighters to make derogatory comments toward plaintiffs at company sponsored breakfasts.
45. Plaintiffs have been called scumbags, troublemakers, disgruntled and “pieces of shit”, among other things. Plaintiffs are often glared at and subjected to veiled comments. Firefighters often cease talking whenever plaintiffs are in their presence. When plaintiffs approach firefighters, firefighters will get up and walk away and otherwise ostracize them from participation. Line officers and chiefs ignore plaintiffs and refuse to talk to plaintiffs or to give them meaningful work and orders.
46. Catskill Fire Company officers, with the intent to humiliate and belittle plaintiffs, require that plaintiffs perform menial tasks typically assigned to probes or less qualified firefighters. Because of the Catskill Firehouse’s refusal to permit plaintiffs to participate meaningfully as firefighters, plaintiffs have often found themselves standing around at fire scenes and not properly utilized unless absolutely necessary.
47. Defendants and voluntary firefighters at the Catskill Firehouse have labeled Joel Shanks, Ricky Shanks, Brian Shanks, Tom Birk, and George Lackie “rats”, “scumbags”, “trouble makers”, “pieces of shit Shank boys”, and “disgruntled firemen”. This would take place when the plaintiffs would walk into a room full of fellow firefighters during monthly meetings, drills, alarms and fundraisers and when the defendants would refer to the plaintiffs amongst line officers while giving out tasks at fire calls.
48. Defendant Neal Russell would assign Joel Shanks tasks which were normally assigned to probationary firefighters or less skilled firefighters. Joel Shanks was ordered to direct traffic at “jaws” calls even though he was certified on the “jaws” and other firefighters were not. At a different auto accident plaintiff Joel Shanks was attempting to help
49. From about January 2006 to
50. In January 2006, defendant Seeley stated that he was going to find out who turned in the Village and “they were going to have hell to pay”.
51. In about February 2006 , defendant John Darling 3rd told Mike O’Connell, a firefighter at the Catskill Firehouse and friend of Joel Shanks, that he was not to mark Joel Shanks off on attended alarms and if he did he would be thrown out of the Department.
52. In February, 2006, defendant Rick Chewens, while in a Rite Aid in
55. On or about
57. The aforementioned action by the
58. By letter from the President of the Village Board dated March 14, 2006 (attached as Exhibit G), Joel Shanks was put on notice that he had been suspended and that such suspension was “effective immediately”. The letter further advised Joel Shanks that he was to “not participate in any fire company or firematic activity until further notice”, and that he was being “removed from the active firefighters list for the Catskill Fire Department/Company. . .” Although said letter stated that a letter would be forthcoming outlining the next steps and a proposed meeting to date, no such “forthcoming” letter was ever sent.
60. On or about
65. On or about
Company ladder truck past the plaintiffs’ house on
71. On or about March 2005 after a small electrical fire had broken out at Ricky Shanks’ residence, Randy Ormerod told several firefighters at the firehouse bar that he wished plaintiff’s house had burned to the ground. When Randy Ormerod dispatched the call to plaintiff’s residence, he stated on the radio that it was the “Shanks’ house”. Hardly anyone showed up to the scene to render assistance. Only six members came to the house for the alarm. Normally structure fire alarms have over twenty men respond.
72. In or about August 2006, firefighter Craig Turczyn, in a threatening manner, stated to Ricky Shanks “as soon as we find out who is making the complaints we are going to beat the fuck out of him!”, “he’s done, he’s going to get the shit kicked out of him”, and “he’s done for”.
74. On or about
75. Defendant Jack Ormerod intentionally omits and refuses to name plaintiffs as firefighters on the Fire Department’s website list of members.
76. Firefighters who befriend or speak with plaintiffs have been told and instructed not to communicate with plaintiffs and have had their careers threatened.
77. All of the foregoing actions were conducted against Joel Shanks and Ricky Shanks in direct retaliation for their expressions of safety concerns to the Catskill Fire Company and to PESH and OSHA.
78. As a result of the unconstitutional conduct of the defendants as set forth above, plaintiffs have been stigmatized and caused to suffer humiliation and anguish.
79. The acts of defendants as set forth above constitute an ongoing, intentional policy and practice of punishing plaintiffs for the exercise of their First Amendment rights’ to free speech and to deter plaintiffs and other members of the Catskill Fire Company from exercising that right in the future.
80. The conduct of the defendants as set forth above has had, and continues to have, an objective chilling effect upon plaintiffs’ exercise of their First Amendment rights to free speech, in that a reasonable person in plaintiffs’ positions would perceive the defendants’ conduct as a threat of further punishment if he or she in the future reported wrongdoing committed by Catskill Fire Company officials and employees.
81. By virtue of the chilling effect which the aforementioned conduct and policy has had, and continues to have, upon plaintiffs’ First Amendment rights to freedom of speech, as well as the First Amendment rights of all members of the Catskill Fire Department, plaintiffs have been and continue to be irreparably injured and will suffer further irreparable injury if the defendants’ conduct is not declared to be unconstitutional.
82. In addition to the foregoing First Amendment violations, the defendants’ conduct has been arbitrary and capricious and has deprived plaintiffs of their rights to Due Process and Equal Protection under the Fourteenth Amendment.
83. The unconstitutional conduct of the individual defendants as set forth above was performed in bad faith and with a deliberate indifference to plaintiffs’ constitutional rights rendering these defendants liable for punitive damages.
84. In addition to the aforementioned constitutional violations, the defendants’ conduct constitutes an ongoing series of violations the plaintiffs’ rights under N.Y.S. Executive Law § 740.
WHEREFORE, plaintiffs ask this Court to:
A. Issue an order adjudging and declaring that the defendants’conduct violated, and continues to violate, plaintiffs’ rights to freedom of speech guaranteed by the First Amendment to the United States Constitution;
B. Issue an order adjudging and declaring that the defendants’ conduct violated plaintiffs’ rights to due process guaranteed by the Fourteenth Amendment to the United States Constitution;
C. Issue an order adjudging and declaring that the defendants’ conduct violated plaintiffs’ rights to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution;
D. Issue an order adjudging and declaring that the defendants’ conduct violated plaintiffs’ rights under N.Y.S. Executive Law § 740;
E. Issue an order directing that the defendants expunge from plaintiffs’ personnel files any references to the complaints against the plaintiffs that are referenced in this action;
F. Award plaintiffs compensatory damages against the defendants;
G. Award plaintiffs punitive damages against the individual defendants; H. Award plaintiffs the costs and disbursements of this action; I. Award plaintiffs reasonable attorney fees; and
J. Grant plaintiffs such further and other relief as to this Court may seem just andproper.