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$545K front pay award upheld for female firefighter’s sex-plus claim, despite some harassment outside of workplace

By Brandi O. Brown, J.D.

Refusing to impose a more stringent standard for sex-plus claims than required for traditional sex discrimination claims, the First Circuit affirmed a jury’s verdict and a judge’s front pay award in favor of a female firefighter who was subjected to “vile verbal assaults” and even had blood and brain matter flung at her by a coworker, before she retired on disability due to post-traumatic stress disorder. The firefighter had presented her Title VII sex-plus discrimination and retaliation claims to a jury over an eight-day trial. The verdict was affirmed, and the $545,000 front pay award remained “undisturbed” (Franchina v. City of Providence, January 25, 2018, Thompson, O.).

“Vile verbal assaults.” Among other harassment, the female firefighter was called “c*nt,” “b***h,” and “lesbo;” she was also spit upon, shoved against the wall, and in what the court described as “one particularly horrifying incident” had blood and brain matter flung at her. Although the firefighter’s career with the Providence, Rhode Island fire department began with great promise it did not end that way. A few years into her career, her upward trajectory halted after a subordinate was investigated and nearly fired because he had been reported for reprehensible behavior towards her. Indeed, in the very first shift she worked with the subordinate, he asked her about her sexuality and offered to impregnate her. Then, in front of other rescue workers, he walked up to her while rubbing his nipples and yelled to her, “My lesbian lover! How are you doing?” Later that evening he walked, uninvited and without knocking, into her quarters, where she was partially undressed. He refused to leave until she began yelling at him. The chief filed a written complaint against the male subordinate, charging him with sexual harassment.

Name-calling and insubordination. Things continued downhill from there. Although she was a lieutenant and, therefore a superior, subordinates and other employees insulted the firefighter and attacked her at every turn. She was called names, including “Frangina” and “b***h,” and insults were written about her in common spaces. Her complaints to superiors had no effect. Other firefighters also thwarted her by refusing to help her when they were on calls. Meals she was served made her (and anyone else who ate off the plate she was given) ill. Her attempts to get away from the harassment were fruitless. She was transferred in 2007 to another station and although there was an initial honeymoon period, the harassment started up again after one of the worst instigators from the prior station had worked a few times at her new station. She began to be referred to by the same names and subordinates also began refusing to assist her. On one occasion a subordinate who performed CPR on a victim deliberately slung blood and brain matter at the female firefighter as he was removing his gloves.

Restraining order and disability leave. She ultimately went out on disability leave. She filed a report with the chief, who claimed she was “blowing [the incident] out of proportion.” His assessment was soundly denounced by the city’s EEO officer, however, who concluded there was “AMPLE merit” to the employee’s claims and that the “pervasiveness” of the behavior created a hostile work environment that the department had failed to stop. After the employee returned from leave, the abuse continued. One instigator’s behavior was so bad she obtained a restraining order against him. The department made little attempt to honor it. Indeed, her last day on the job he was at her station, insulting her to other employees. She was placed on injured-on-duty status and she retired on disability in 2013 after being diagnosed with PTSD. After filing an EEOC charge, she filed suit against the department. After an eight-day trial, during which she testified on three of the days, the jury ruled in her favor.

Timely charge, admissible evidence. On appeal, the city’s many arguments were rejected. The testimony presented was “at least minimally sufficient” to support the conclusion that the employee’s EEOC complaint was timely. Evidence regarding an incident that occurred at a union hall was properly admitted even if it occurred outside of the workplace because the male employees involved also harassed the employee at work. Likewise, admission of the hearing transcript from when the employee obtained injunctive relief against one of the male employees was proper for the purpose for which it was admitted—to demonstrate that the city knew or should have known about the harassment and that it failed to take remedial action.

Evidence supported sex-plus claim. Also rejected was the employer’s argument that the evidence was insufficient to support the employee’s sex-plus theory of discrimination, based on her sex plus her sexual orientation. The employer argued that a more stringent evidentiary standard should have been applied and that the employee should have been required to identify a comparative class of homosexual male firefighters who had not been discriminated against. That approach, the court explained, not only had “some rather obvious flaws,” but it has not been endorsed by the First Circuit and is in direct conflict with the text and jurisprudence of Title VII.

The position taken by the employer, the court explained, would essentially require a showing of “but-for” causation, which has been explicitly rejected by the U.S. Supreme Court. In fact, the court explained, there was more than sufficient evidence to support the employee’s claim of harassment based, at least in part, on her gender. The employee “presented a plethora of evidence showing that the impetus for the discrimination she sustained was based in part on her being a female.” Inherently gender-specific epithets were used, and there was evidence that women were treated as less competent than men.

Front pay award upheld. The court also upheld the front pay award of $545,000. Although the employer faulted the employee for not presenting the “essential data” necessary to calculate the award, the appeals court determined that the crucial information had been supplied, even if the employee did not present the court with a discount rate. Although the employee’s lost pay and benefits for a projected 20-year-period could have been as much as $2 million, her award represented a much smaller amount. “Clearly” the court explained, “the judge assumed that the future was uncertain, and an award for over $1 million unwarranted.” There was also no case law to support the employer’s argument that expert input on this issue was necessary.