Lesbian EMS employee wins $806K on Title VII sex-plus and retaliation claims

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By Lorene D. Park, J.D.A female fire department employee, who is a lesbian, was awarded $806,000 following a jury trial on her sex-based hostile work environment and retaliation claims.

In recently denying the defendant’s motion in limine, a federal district court in Rhode Island refused to preclude evidence on the sexual relations between, and sexual orientations of, other members of the fire department. It explained that by alleging that females who were willing to have sex with coworkers and superiors were treated more favorably, the employee essentially asserted a sex-plus claim of discrimination against a subset of a protected class—women who are lesbians (Franchina v. City of Providence, April , 2016, McConnell, J., Jr.).

Harassed by male coworkers. The employee was hired by the Providence Fire Department in 2002 and worked in rescue units, providing EMS services. According to her pretrial memo, although she was an “excellent employee who was swiftly promoted,” she was subjected to severe harassment. In 2006, she was sexually harassed by a male coworker known for harassing other females. After he was terminated, the harassment went department-wide.

She was allegedly referred to as “Frangina,” “that bitch,” or “that c*nt” by male firefighters, who also refused to follow her orders or to assist her on emergency runs, putting both her and injured individuals at risk. At one point when she told a subordinate to change his bloody gloves (he was getting blood on the equipment) he allegedly snapped the latex gloves in front of her face so that blood and brain matter covered her face and got into her ears, nose, and mouth. Male coworkers also allegedly refused to let the employee eat meals with them at the station, and wrote insulting remarks about her on the station’s message board.

Other female firefighters also experienced harassment. One reported that women who have sex with men on the job are treated more favorably. Another, who is a lesbian, testified that she had sex with a male superior office due, in part, to her desire to be protected from the harassment she witnessed the employee endure. According to the employee, the campaign of harassment against her left her psychologically disabled and she was diagnosed with post-traumatic stress disorder.

Investigations. Despite the employee’s complaints to superior officers and the EEO office, her harassers were not disciplined. An EEO officer for the city investigated and one chief reported that male firefighters harassed the employee because they “did not have a shot with her” and other female lieutenants were “cut more slack” because the firefighters did have a shot with them. The investigator was also allegedly told by one chief that “at least eighty percent of what she says is true” and that she received harsher treatment because she was not available to the male firefighters sexually. Even after the employee obtained a restraining order against a male firefighter who allegedly assaulted her while on duty, the chief issued an order requiring that he never be schedule with her unit but the order was not followed. Less than a year later, he was on duty in the employee’s station and her complaints about it were not remedied.

Defendant’s brief. The defendant’s pretrial memo told a different story, describing the employee’s complaints of minor offenses, often outside of the chain of command, reporting things like being given the cold shoulder, not having her food put where she liked it, and one coworker refusing to prepare her food (he allegedly refused because she didn’t help with the meals). The defendant’s brief stated that it investigated her complaints and took remedial action. At one point, coworkers complained that her manner on scenes embarrassed and denigrated firefighters. She was counseled on how to get along with coworkers. As for the alleged assault, the defendant characterized it as an “altercation” between coworkers at a Christmas party that was addressed by having them separated.

Litigation. In prior proceedings, the court dismissed all but the employee’s Title VII gender discrimination and retaliation claims. In a text order entered in the docket on February 22, 2016, the court noted that the employee’s sexual orientation status could be asserted as part of a “sex plus” theory. Later denying the defendant’s motions in limine as to evidence of sexual relations among and the sexual orientation of members of the fire department, the court explained that the employee’s sexual harassment claim could not be disentangled from evidence about her and others’ sexual orientations and attendant sex-based stereotyping. Indeed, she claimed that female employees who had sex with male coworkers and supervisors were treated better.

Jury awards employee $806,000. Following trial, the jury found unanimously in favor of the employee on both her hostile work environment claim and her retaliation claim. For compensatory damages, she received no back pay but she was awarded $545,000 in future wages and $161,000 in emotional damages. She was also awarded punitive damages in the amount of $100,000, for a total of $806,000.

Source: Employment Law Daily Newsfeed

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