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1st Circuit Affirms Jury Verdict for Lesbian Firefighter in Title VII “Sex-Plus” Case

Posted on: January 29th, 2018 by Art Leonard No Comments

A three-judge panel of the Boston-based 1st Circuit Court of Appeals affirmed a Title VII jury verdict for Lori Franchina, a lesbian firefighter who won her claim of hostile environment sexual harassment and retaliation against the Providence, Rhode Island, fire department.  The January 25 decision harshly condemned the Providence Fire Department for its treatment of Franchina, concluding, “The abuse Lori Franchina suffered at the hands of the Providence Fire Department is nothing short of abhorrent and, as this case demonstrates, employers should be cautioned that turning a blind eye to blatant discrimination does not generally fare well under anti-discrimination laws like Title VII.”  Franchina v. City of Providence, 2018 WL 550511, 2018 U.S. App. LEXIS 1919 (1st Cir., Jan. 25, 2018).

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of the sex of an individual. Whether Title VII forbids discrimination because of sexual orientation or gender identity is one of the hot questions in employment discrimination law, but the Supreme Court’s recent decision not to review a negative answer to that question by a three-judge panel of the Atlanta-based 11th Circuit has put off a definitive answer.  In the meanwhile, gay people encountering discrimination continue to file claims and sometimes, given the nature of the problems they encounter, have been able to win victories, even in federal circuits where the courts officially do not allow sexual orientation discrimination claims.

The 1st Circuit has a twenty-year old precedent barring sexual orientation claims, but this case shows that they can be brought of the sexual orientation issues mingle with more traditional sex discrimination issues.  Courts refer to such cases as “sex-plus” cases.  The opinion by Circuit Judge Ojetta Rogeriee Thompson explained that Franchina’s evidence clearly supported liability under the sex-plus theory.

Franchina joined the Fire Department in 2002, assigned to the North Main Street Fire Station, where she experienced neither discrimination nor harassment and quickly advanced to a leadership position, eventually becoming a Rescue Lieutenant in charge of a rescue vehicle squad. Her problems began in 2006 when she was assigned to work a shift with Andre Ferro, “a firefighter with a history of sexually harassing female colleagues,” under her supervision.

On his first day under Franchina’s command, Ferro bluntly asked if she was a lesbian. When she said this was none of his business, he said, “I don’t normally like to work with women; but, you know, we like the same thing, so I think we’re going to get along.”  She told him not to say such things, and immediately went into her office to avoid him, but soon an emergency call came in and their squad was dispatched to respond.  During the run, Ferro “continued with his inappropriate prattle” and sexually charged talk, including suggesting that if Franchina wanted to have a child, “I could help you with that.”  Franchina found his chattering so distracting that she asked him several times to stop talking and she refused to engage with him.  In a subsequent run that day, he embarrassed her in front of nurses, doctors, patients, and patient families in a hospital holding room, as he “began rubbing his nipples in a circular fashion, leapt up in the air, and screamed at Franchina, ‘My lesbian lover!  How are you doing?’”  Franchina testified that she was “horrified and felt belittled,” and other firefighters present were “similarly appalled.”

The court’s opinion goes on in detail about Ferro’s continued misbehavior, which became the talk of the Department. As a result, Chief Curt Varone initiated a complaint against Ferro, and when word of the resulting disciplinary proceeding got around, other male firefighters at that station “began to treat Franchina with contempt and disdain.”  The court’s opinion documents in detail a litany of slights, insubordination, and even an attempt by a firefighter serving as a cook for the company to cause her food poisoning.  Co-workers took to referring to Franchina by epithets such as “Frangina” (a play on her name and vagina), “bitch,” and “lesbo.”  Some of the insubordination resulted in danger to patients her squad was assigned to rescue.

Even after she was transferred to a different station, the harassment continued when one of her persecutors from North Main Street showed up at the new station on an assignment and quickly spread the word about her. Franchina sought an obtained a state court injunction against one of her persecutors, but the Department failed to effectively execute an order that he not be assigned in any stations that had a rescue unit.

Although some disciplinary steps were eventually taken against individual employees, the Department never effectively put an end to the harassment, and “the constant ridicule and harassment Franchian experienced caused her to be placed on injured-on-duty (IOD) status, where she performed administrative tasks and eventually was requested not to come to the fire station.

At her discrimination trial, other women in the Department testified to a culture of discrimination, supporting Franchina’s claim that the hostile environment she encountered was due to her sex as well as her sexual orientation. This led the court to conclude that her Title VII sex discrimination claim could go forward.  The jury, resolving all issues against the Department, awarded her substantial damages, including “front-pay” which was adjusted by the trial judge to over half a million dollars and punitive damages (which the trial judge removed from the award).

Providence appealed the verdict and substantial damage award, claiming that most of Franchina’s allegations were barred by the statute of limitations and that the trial judge had erred in allowing certain objectionable evidence to be shown to the jury, but the court of appeals rejected these arguments.

Most significantly, the court rejected Providence’s argument that this was really a sexual orientation discrimination case that should have been dismissed by the trial judge under the circuit’s precedent. Judge Thompson responded that this was a “sex-plus” case, which she described as “a flavor of gender discrimination claims where ‘an employer classifies employees on the basis of sex plus another characteristic.”  The city argued that Franchina could not bring such a claim unless she could present evidence at trial of a comparative class of gay male firefighters who were not discriminated against.  The city argued that absent such evidence, she could not establish the treatment she suffered was due to her sex.

The court rejected this argument, quoting earlier decisions holding that “the effect of Title VII is not to be diluted because discrimination adversely affects only a portion of the protected class.” Thompson pointed out that the city’s position conflicts with the text of Title VII as amended in 1991 to provide that if there are more than one causative factors for discrimination, some covered by Title VII and some not, as long as the plaintiff shows a factor covered by Title VII, they can establish a sex discrimination claim under the statute.  Thus, “the sex-plus label is no more than a heuristic, a judicial convenience developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment and obtain a favorable verdict at trial even when not all members of a disfavored class are discriminated against” because another factor in addition to sex contributed to the discrimination – in this case, Franchina’s sexual orientation.

The court found that the jury had a sufficient evidentiary basis to conclude that the Department violated Title VII in Franchina’s case, because there was plenty of evidence to suggest that her sex as well as her sexual orientation were involved. The court pointed out that Franchina was not attempting to overturn the circuit’s precedent against sexual orientation claims, and in fact the trial judge had dismissed a count of her complaint specifically based on sexual orientation, so that claim was not part of the trial.

The court upheld the trial judge’s charge to the jury, which told them that Franchina “did not have to prove that all women were discriminated against or were harassed, but she must prove that she was harassed, at least in part, because she is a woman. In other words, she may meet this element by proving that she was harassed because she is part of a subclass of women, in this case lesbians, if she also proves that this harassment was at least in part because of her sex or gender.”

The court also rejected the city’s argument that an award of front-pay was inappropriate where the plaintiff did not present an expert witness to discuss how to determine the present value of future pay, which should be taken account of in the final damage award. The court pointed out that the trial judge had adjusted the jury award to take account of this factor, and that 1st Circuit precedents did not, strictly speaking, forbid awarding front-pay in the absence of expert testimony.

Franchina is represented by John Martin, Benjamin H. Duggan, and Kathy Jo Cook and KJC Law Firm LLC. The court received a joint amicus brief from GLBTQ Legal Advocates & Defenders (GLAD), Lambda Legal, the National Center for Lesbian Rights and the ACLU.