Fire Department Appropriately Responds To ‘Chumming’

John Banacki is a firefighter with the City of South Bend, Indiana Fire Department. Bawdy humor and practical jokes were common at the Department’s Station 6, where Banacki was assigned. Often, Banacki and the other firefighters participated in off-color jokes and pranks at the expense of other firefighters.

On August 2, 2007, Banacki was playing cards with five other firefighters. During a break in play, another firefighter, Steven Vandervoort “chummed” Banacki. Banacki explained the “chumming” as Vandervoort rubbing his groin area on Banacki’s forearm, while still fully clothed. Banacki stated that he immediately pulled away from Vandervoort, expressed his displeasure, and told Vandervoort to stop. The incident occurred out of the presence of the other firefighters.

The next day, Banacki made a complaint against Vandervoort to the Captain of Station 6. The City promptly launched an investigation, assigning a City Attorney to handle the inquiry. On August 6, 2007, while Banacki’s claims of sexual harassment against Vandervoort were being investigated, Vandervoort was transferred to a different station. The investigation consisted of interviews of all the firefighters that were present at the card game on the night of the alleged incident. While all of the men acknowledged that bawdy humor existed in the station, none of the men claimed to have witnessed the alleged incident. After completing his investigation, the City attorney determined that no incidents of sexual harassment had occurred. As a result, Vandervoort was returned to Station 6.

Upon Vandervoort’s return, a captain asked Banacki and Vandervoort if they would be able to work together; and both men stated that they would. However, shortly after Vandervoort’s return to Station 6, Banacki began complaining about other aspects of Vandervoort’s behavior. For example, on September 10, 2007, Banacki complained about Vandervoort using his laptop computer after the “lights-out” curfew imposed by the captain. On September 11, 2007, the captain made a request that Banacki be transferred to a new station. On September 18, 2007, Banacki was transferred from Station 6 to Station 8.

Banacki claimed that he was transferred in retaliation for the complaints he made against Vandervoort. A federal court found that Banacki’s claims, even if true, did not amount to illegal sexual harassment. To maintain a claim for sexual harassment under the theory of a hostile work environment, an employee must show that (1) he was subjected to unwelcome conduct of a sexual nature; (2) the conduct was directed at him because of his sex; (3) the conduct was severe or pervasive enough to create a hostile work environment; and (4) there is a basis for employer liability. The Court found that “even if Banacki could establish the first three elements of a prima facie case, he can not establish the fourth. He has failed to show that there is a basis for his employer’s liability. Simply put, the Defendants responded reasonably and promptly, once they were aware of the offending incident and took corrective measures to prevent future incidents.

“A day after receiving the report from Banacki, SBFD promptly notified the City attorney and began an investigation of the matter. Meanwhile, SBFD also took prompt steps to separate Vandervoort from Banacki, temporarily transferring the alleged harasser to another station. After finding no evidence to substantiate Banacki’s claims, the City closed the investigation and returned Vandervoort to Station 6. Upon Vandervoort’s return, however, both parties conceded that they could work together in the same station. The Defendants did not investigate other alleged incidents of harassment because Banacki never filed a report regarding those incidents. Given these undisputed facts, this Court considers the Defendants’ actions to be reasonable in regards to both the City’s investigation of Banacki’s complaints of harassment and SBFD’s efforts to prevent similar incidents from happening in the future. As such, without more, Banacki can not factually establish that the Defendants acted in an unreasonable manner and, therefore, can not establish legal liability against them.”

Banacki v. City of South Bend Fire Dept., 2010 WL 2038573 (N.D. Ind. 2010).

This article appears in the August 2010 issue