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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.

Federal Court Upholds $100,000 Jury Award to Lesbian Plaintiff Against United Parcel Service (UPS)

Posted on: July 28th, 2015 by Art Leonard No Comments

Rejecting motions to set aside the jury verdict, order a new trial or reduce damages, U.S. District Judge Jack B. Weinstein upheld a federal jury’s award of $100,000 in damages to Tameeka Roberts, an employee at the United Parcel Service facility in Maspeth, Queens, who complained that the company had tolerated a hostile environment created by her supervisor and had retaliated against her when she pressed her complaint to the New York State Division of Human Rights.  Roberts v. United Parcel Service, 2015 WL 4509994 (E.D.N.Y., July 27, 2015).

According to Judge Weinstein’s opinion, Ms. Roberts lives with her wife and three sons in New Jersey.  She began working for UPS in 1995 and has had about twenty different supervisors over the past twenty years.  Her “problem” supervisor whose conduct led to this lawsuit was Donald Woodard, a “full-time area coordinator” who supervised Roberts in 2007 and 2008, and then again from 2010 through 2012, when an incident in which Ms. Roberts was seriously injured at work attributable to misconduct by Woodard led to his assignment to a different facility.

Roberts’ problems with Woodard began in 2007 after she complained to Woodard about a denigrating comment he made to her about another lesbian employee.  “The next day,” wrote Weinstein, “Woodard brought his Bible to work and ‘showed [Roberts] where [the Bible] says that being a lesbian is wrong.’  He told her ‘It goes against the Bible…. It’s a sin.'”  Woodard admitted making these comments in his trial testimony.  Roberts complained to her shop steward and the head of security, but apparently nothing happened in response to her complaint.  “During the rest of 2007,” wrote Weinstein, “Woodard repeatedly told plaintiff that ‘being a lesbian is wrong’ and that she was ‘going to hell.'”  Woodard made these comments in the hearing of other workers, and told a co-worker not to “hang out” with Roberts because “she’s not living right. She had demons.  She doesn’t know who she is.”  Roberts complained to Woodard, telling him “this is not church” and “making comments about me being a lesbian is wrong.”  Woodard’s comments continued similarly during 2008.  Roberts would try to avoid confrontation by walking away or telling him to “leave me alone.”

The problem ceased in 2009 when Woodard stopped working at the Maspeth facility, but he returned as Roberts’ supervisor in 2010 and his comments resumed along the same lines.  Woodard again complained to a union shop steward, but nothing changed.  Woodard told Roberts that “two women being married is not natural,” that “being a lesbian is wrong,” that she was “going to hell” and she needed to “change” her “life, the style, the way” she was living.  She repeatedly complained to the shop steward.  In 2011, Roberts testified, Woodard threatened to take a photo of her with a married male co-worker and send it to the co-worker’s wife, as if to suggest they were having an affair.  Roberts reported this to her night manager and her shop steward.  The manager told her “do not go to corporate” with this complaint, because “I will handle the situation.”  Woodard’s comments then stopped for a while, but in the late summer of 2012 he got started up again, and Roberts renewed her complaints to the shop stewards, who finally brought her to Human Resources, where, apparently, nothing happened.

What finally seemed to get the company’s attention was a call Roberts made on October 23, 2012, to the UPS Corporate Concerns hotline, anonymously.  She identified herself as gay and said she felt “intimidated” and “harassed” because Mr. Woodard engages in “religious rants at the job” and makes “derogatory comments about gays.”  A few days  later, Roberts met with the local HR representative, a manager, and her shop steward, and an investigation of Woodard was launched.  However, the HR representative just cautioned Woodard that “religion has no place in the workplace” but took no other action.  Woodard stopped making his comments to Roberts, but she felt the company should have done more, so she sent a letter to corporate headquarters in Atlanta, claiming she was being harassed by Woodard and felt threatened, harassed and stressed because of “this situation.”  She asked, “Why is Donald Woodard allowed to Harass, Gay Bash and verbal abuse [sic] his employees and still be employed at United Parcel Service?”

The letter led UPS to open a second investigation, this time by the UPS Human Resources Operations Manager for the District, Beverly Riddick.  She met with Roberts for half an hour and told her that UPS was taking her complaint “very seriously.”  Riddick met with Woodard, but, according to the trial testimony, although Riddick learned that Roberts’ factual allegations were apparently true, Riddick did not believe that Woodward’s comments violated the law or company policy but were merely “inappropriate.”  “Woodard was not told to desist,” wrote Weinstein.  Riddick also interviewed the shop steward and two of Roberts’ co-workers.  Although these interviews also confirmed Roberts’ allegations about Woodard’s conduct, Riddick concluded that Woodard’s statements did not constitute discrimination or harassment, and so she testified at trial.

When Roberts ask her shop steward about the status of the investigation, he told her that her complaints were “probably unfounded” as Woodward was still supervising her.  Shortly after this, Roberts got permission from her immediate supervisors to miss work for a day in order to appear in traffic court and this was noted on her time card. But when she returned the next day, her time card indicated she was absent without calling.  She became convinced that Woodard had altered the time card, although he denied doing so.  UPS terminated its second investigation.  Woodard was not given any written warning and was left in place supervising Roberts, but senior management decided he should be transferred eventually to another facility and would be required to review UPS policies and to complete “two written statements,” which are not described in the court’s opinion.

When she learned about the outcome of the investigation, Roberts filed a complaint with the New York State Division of Human Rights early in December 2012.  She informed her shop stewards and union delegate about filing the complaint.  Soon after, she suffered injuries when a number of packages feel and hit her face, shoulder, arm and hand.  “She looked up and saw Woodard above her,” wrote Judge Weinstein.  “He was attempting a UPS procedure called ‘breaking the jam,’ but he had not followed safety protocol, which required notifying everyone in the area and stopping the conveyor belt.”  Roberts ended up missing weeks of work while tending to her injuries.  She wrote again to the NYS Division of Human Rights, “stressing the adverse impact this and other incidents had on her health.”  Woodard received no discipline from UPS for violating work rules but was transferred to another facility in January 2013.  Roberts was unable to return to work until mid-February.

Her lawsuit relied on the N.Y.C. Human Rights Ordinance, which provides greater protection for employees than the state or federal employment discrimination laws as a result of an amendment passed in 2005 called the Local Civil Rights Restoration Act.  Responding to evidence that state and federal courts were not providing adequate protection against discrimination for employees, the City Council determined to make it clear that interpretation of the city ordinance should not be limited by those federal and state law interpretations.  “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil rights laws, including those laws with provisions comparably-worded to provision of this title, have been so construed,” says the 2005 amendment.  This amendment is crucial to the outcome of Roberts’ case, since it is possible that under state and federal precedents, UPS might have been entitled to have some or all of her charges dismissed. Most importantly, New York City precedents make it easier for an employee to prove a hostile environment claim and to challenge employer retaliation.

Judge Weinstein devoted a substantial part of his opinion to a detailed overview of the history of anti-gay discrimination in the United States, quoting extensively from briefs filed with the U.S. Supreme Court in the recent marriage equality case, Obergefell v. Hodges.  He also quoted at length from a decision issued by the federal Equal Employment Opportunity Commission, explaining why anti-gay discrimination violates the federal ban on sex discrimination.  It is not clear why the judge included this material in his opinion, since the case was brought under the  NYC Human Rights Ordinance, but he seemed to determine to provide substantial support for the conclusion that gay people have suffered substantial discrimination in the past that needs to be redressed under civil rights laws.

The jury concluded that Roberts proved she was subjected to a hostile environment because she is a lesbian, and that she suffered retaliation after she complained both internally and to the civil rights agency.  The jury determined to award her compensatory damages of $25,000 for each claim and punitive damages of $25,000 for each claim, totaling $100,000, as well as awarding her the costs of her litigation.  UPS had filed pretrial motions seeking to get the case dismissed, and renewed its motions post-trial, arguing that Roberts had failed to prove a violation of the law and was not entitled to the damages.  Weinstein rejected these contentions out of hand.

Weinstein quoted the “guiding principles” that the U.S. Court of Appeals for the 2nd Circuit (based in Manhattan) had summarized for analyzing claims of discrimination and retaliation under the NYC Human Rights Law and then used those principles explicitly to refute every argument UPS made.

“Defendant argues that plaintiff fails to make a prima facie case of hostile work environment because she presents only ‘petty slights and trivial inconveniences,'” he wrote.  “To the contrary, Woodard’s continuing discriminatory comments about plaintiff’s sexual orientation, made over a number of years, show adverse differential treatment.  So too do the significant failures of supervisors to protect plaintiff against discrimination.  There was sufficient evidence for a jury to conclude that a reasonable person — who repeatedly was the target of such comments as plaintiff and repeatedly complained but found no recourse — would consider the comments more than a trivial inconvenience.”  Weinstein had noted that because of the more protective interpretation required for claims under the City’s ordinance, this case, which might not have sufficed for a hostile environment claim under Title VII of the Civil Rights Act, clearly qualified.

As to the retaliation claim, Weinstein wrote, “Retaliation may be subtle and hidden and can be hard to prove.  Juries are therefore given more leeway in finding retaliation than in finding discrimination. The jury had ample grounds to find retaliation likely to deter a worker from complaining of abuse.  Woodard and the defendant’s deliberate adverse conduct – the jury could have found – would likely deter a person from engaging in plaintiff’s protected activity (identifying as a lesbian).  First, not only did Woodard harass plaintiff over a course of approximately six years, but he harassed her after she complained repeatedly, to her supervisors and to him, of his ongoing adverse conduct.  Second, the jury could find that shortly after the second investigation, plaintiff’s time card was changed by Woodard as a punishment for protesting.  Third, the jury could find plaintiff was hit with packages by Woodard in retaliation. Fourth, it could find that defendant’s decision to allow Woodard to supervisor plaintiff after her repeated complaints demonstrated so much disdain by management as to itself constitute retaliation.  Fifth, Riddick’s investigation yielded no tangible results, despite substantial evidence of harassment; this know-nothing attitude was itself a form of retaliation by an implied expression of contempt for plaintiff’s complaints.”

In short, Weinstein really threw the book at UPS!

He was equally dismissive of UPS’s claim that the damages awarded by the jury were excessive.  $25,000 per claim for compensatory damages and $25,000 per claim for punitive damages struck Weinstein as “modest” and “well within an acceptable reasonable range.”  As to the punitive damages, UPS had the gall to argue that Roberts had not shown that the company acted with “malice” or “reckless indifference.”  “To the contrary,” wrote Weinstein, “plaintiff demonstrated sufficiently for a jury finding that defendant acted with reckless indifference to her multiple complaints of sexual orientation discrimination over many years.  UPS was anything but prompt.  By 2012, when Riddick, a high-level manager for defendant, conducted an investigation, she determined, contrary to overwhelming evidence of discrimination, that no discrimination had occurred.  She did not discipline Woodard in any meaningful fashion and allowed him to continue supervising plaintiff for a short period.”

Finally, Weinstein concluded, “Even if plaintiff failed to demonstrate that defendant retaliated because of her complaints by altering her time card and by failing to provide a safe working environment for plaintiff, there was sufficient proof of retaliation in central administration’s cavalier attitude towards plaintiff’s serious charges of harassment.”  Thus, she was entitled to punitive damages “as a matter of law” and “the modest award of each claim was appropriate in light of the evidence before the jury.”  Weinstein rejected the motion to set aside the verdict, the motion for a new trial, and the motion to reduce damages.

UPS could attempt to appeal this to the 2nd Circuit, but Judge Weinstein was careful to emphasize the 2nd Circuit’s own guidelines for evaluating such claims and to provide extensive sections of the trial testimony to show that the jury had a strong evidentiary basis for its verdict.  Also, his characterization of the damages as “modest” seems correct, in light of larger damage awards he noted in other cases.  This looks like a verdict that is likely to withstand appeal.

Tameeka Roberts is represented by Alex Umansky, Jessenia Maldonado, Phillips & Associates, PLLC, and Casimir Joseph Wolnowski, New York attorneys.  UPS retained suburban counsel from New Jersey.  Perhaps they were not too concerned about this case, but Weinstein’s strongly worded opinion is calculated to wake them up!  Perhaps some heads need to roll in the UPS Human Resources Department after a judge determines that they have a “cavalier attitude” about unlawful discrimination.