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Franchina v. Providence Fire Dep't, No. 16-2401 (1st Cir. Jan. 25, 2018)

In the First Circuit, a woman lieutenant successfully defends a Title VII award of $545,000 for front pay and $161,000 for emotional damages. The exhaustive 60-page opinion addresses the admissibility of harassment outside of the workplace, application of the sex-plus theory where the "plus" factor is sexual orientation, and the degree of proof necessary for front-pay relief.

Franchina v. Providence Fire Dep't, No. 16-2401 (1st Cir. Jan. 25, 2018): The plaintiff, who testified for three days, reported that her first years with the department (2002-06) were very good and trouble-free. In 2006, though, "she was assigned to work a shift with Andre Ferro ('Ferro'), a firefighter with a history of sexually harassing female colleagues in the Department." (He was the subject of another lawsuit that also went to the First Circuit, O'Rourke v. City of Providence, 235 F.3d 713, 718 (1st Cir. 2001).)

"Ferro's notriety was on display within moments of Franchina meeting him. After arriving at the station for her shift and while pouring herself a cup of coffee, Franchina was immediately approached by Ferro who, without missing a beat, asked if she was a lesbian. To repeat, this was their very first encounter. After Franchina retorted that it was none of his business, Ferro followed up with the statement, '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.'"

He continued to harass her during the shift: "offering" to impregnate her; displaying himself (rubbing his nipple area) and yelling ("My lesbian lover! How are you doing?") in front of a group of firefighters, medical professionals and patients; and bursting into her quarters unannounced "wearing what appeared to be only his boxers, a Providence Fire Department shirt, and socks" and refusing to leave.

Despite that she made no complaint, the department carried out an investigation (of the nipple-rubbing event). Other firefighters laid blame on Franchina for the disciplinary activity. The men under her command ostracized her; refused to share meals (and possibly poisoned her meals, as well, though this was unresolved); used ugly epithets ("c**t," "bitch," "lesbo," and "frangina," among others); graffitied a white board with personal insults; and refused to support her at emergency runs, even at the peril of civilian lives.

Transferring firehouses afforded no relief, as one of her resentful former colleagues later followed her. He yelled "affirmative action's killing this f**king job," shoved her, and later the same kinds of slurs. Again, her colleagues refused to support her - failing to move a bleeding patient, refusing to drive a critically-injured accident victim - and one, especially horrible incident, allowed her to be showered in bloody human debris.

She regularly complained to the department but got no relief. An EEO officer with the department found in her favor on her allegations, but no disciplinary actions were ever taken.

She took disability because of the stress, but upon returning six months later the harassment continued full-force. She even had to get a temporary restraining order ("TRO") against one of the firefighters because of spitting, yelling and false imprisonment that occurred at the union hall (the "Union Hall Incident").

On her final day of active-duty, in 2010 (four years after the harassment commenced), she was confronted by one of her colleagues yelling, "Do you know who was in the f**king station today? That bitch was in the station." Even during the three years that she was on "injured-on-duty" status, she was abused verbally.

At trial, plaintiff won both her sex harassment and retaliation claims. Although the district court struck the punitive damage award - such relief is not permitted against public agencies - it upheld the other legal relief and made a front pay award (the amount that the jury calculated for lost future pay).

The First Circuit affirms in all respects.

The department appealed only the harassment claim. Its first argument was that the claims was untimely because the harassment ended no later than February 3, 2011, the effective date of her EEOC charge. Yet "Franchina's testimony that she returned to the firehouse for a 'good portion' of 2011 could certainly be understood to mean that she returned past February 3, 2011 (and logic reasonably suggests that the words 'good portion' encompassed not merely the first thirty-three days of the year)."

The department also challenged the admission of evidence of certain incidents. It claimed that the Union Hall Incident was irrelevant because it was unconnected to the workplace. The panel rejects this line:

"First, we have never mandated that evidence of non-workplace harassment have direct, formal workplace consequences (such as those listed above) for it to be relevant .... Second--and not to belabor the point--we have explained that non-workplace incidences are admissible if they cast light on the motivations, pervasiveness, and/or severity of the harassment."

The panel then affirms the admission of the TRO transcript for non-hearsay purposes: "Testimony from senior officers (i.e. those in positions of power) concerning what happened at the union hall, regardless of its truth, could be understood as lending credence to the inference that the Department should have been on notice of the hostile work environment with which Franchina contended." And even if admission of the evidence were in error, it was harmless because "[t]here was a plethora of other, independent evidence introduced at trial that more than supports the verdict that Franchina was discriminated against on the basis of her gender."

The department also argued that, to meet her burden of proof, she was required - in a sex-plus case, where the harassment was allegedly motivated by sex and another factor (here, sexual orientation) - "to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination." Thus, in this case, the plaintiff would be required to show that a comparable gay male firefighter was not harassed.

The First Circuit holds that the plaintiff had no such burden. "[S]uch a standard would permit employers to discriminate free from Title VII recourse so long as they do not employ any subclass member of the opposite gender." Moreover, such a standard implies a "but for" standard of causation that does not apply to status-based discrimination claims under Title VII. And "we see no reason why claims where the 'plus-factor' is sexual orientation would not be viable if the gay or lesbian plaintiff asserting the claim also demonstrates that he or she was discriminated at least in part because of his or her gender.

Reviewing the record, the panel finds "a plethora of evidence showing that the impetus for the discrimination she sustained was based in part on her being a female .... There was evidence that Franchina was subjected to humiliating sexual remarks and innuendos by Ferro, including asking the plaintiff if she wanted to have babies and if he could help her conceive. This type of sexually based animus is a hallmark of Title VII."

The panel rejects a claim of error on the jury instruction: it holds that it would have been superfluous to instruct, as the department wanted, that "[i]f you find that Ms. Franchina faced harassment solely because of her sexual orientation, then she has not proven that she faced harassment because of her gender."

Finally, the department challenged the factual basis of the $545,000 front pay award by the district court. The panel holds that there was sufficient evidence to support the award. The court lays out some relevant factors:

"In deciding on a request for front pay, a district court can consider an array of issues. A nonexhaustive list includes the following: Is the plaintiff able and allowed to return to work with the employer? What pay and benefits was she receiving? What other work can and will she likely obtain to offset the loss? What pay increases might she have obtained had she remained employed? For how long would she have worked? What will be the effects of inflation? What will be the rate of return on any award?"

The plaintiff, holds the panel, presented some evidence on most of these factors. Forced to retire from her job on disability at a relatively young age, she conceivably gave up decades of employment. "[T]he crucial factor in estimating future lost wages was the number of years that her annual unadjusted loss of $73,000 to $105,000 would have continued." The court holds that despite the district court failing to announce a specific discount rate, the award fell within a reasonable range: "Its ample discretion to discount for uncertainty dwarfed as a practical matter any loss of precision in discounting for a reasonable rate of return where the likely duration was perhaps five years."

The panel also holds, following the decision of other circuits, that it is not essential for a plaintiff to present expert testimony to support a front pay award.

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