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Franchina v. City of Providence

United States Court of Appeals, First Circuit

January 25, 2018

LORI FRANCHINA, Plaintiff, Appellee,


          Kevin F. McHugh, Senior Assistant City Solicitor, with whom Jeffrey Dana, City Solicitor, and Kathryn M. Sabatini, Associate City Solicitor, were on brief, for appellant.

          John Martin, with whom Benjamin H. Duggan, Kathy Jo Cook, and KJC Law Firm, LLC were on brief, for appellee.

          Mary L. Bonauto and Allison Wright, with GLBTQ Legal Advocates & Defenders, Ria Tabacco, with American Civil Liberties Union, Gregory R. Nevins, with Lambda Legal Defense & Education Fund, Inc., Shannon P. Minter and Christopher Stoll, with National Center for Lesbian Rights, on brief for American Civil Liberties Union, American Civil Liberties Union of Rhode Island, GLBTQ Legal Advocates & Defenders, Lambda Legal Defense & Education Fund, Inc. and National Center for Lesbian Rights, amici curiae.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          THOMPSON, Circuit Judge.

         Sticks and stones may break some bones, but harassment can hurt forever. "Cunt, " "bitch, " "lesbo": all are but a smattering of the vile verbal assaults the plaintiff in this gender discrimination case, Lori Franchina, a former lieutenant firefighter, was regularly subjected to by members of the Providence Fire Department ("the Department"). She was also spit on, shoved, and--in one particularly horrifying incident--had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team. After an eight-day trial, a jury in the District of Rhode Island concluded that Franchina had been discriminated against on the basis of her gender and retaliated against when she dared protest her treatment. For her ordeal, she was awarded front pay[1] as well as emotional damages.[2] The City of Providence ("the City") now appeals, making numerous arguments as to why the jury verdict should be set aside or, in the alternative, why the judge's front pay award should be stricken. Because we decline to put out flames of the Department's own making, we affirm.

         Getting Our Factual Bearings

         We begin, as we nearly always do, by outlining how this case came to be. Though the City attempts to trivialize the abuse inflicted upon Franchina while working for the Department by giving it short shrift in its brief, we decline to be as pithy in reciting Franchina's plight in order to give context both to the jury's and the district court's ultimate determinations.[3] In outlining the background in this case, we keep in mind that our recounting of the facts is done "in the light most favorable to the verdict, deferring 'to the jury's discernible resolution of disputed factual issues.'" Ciolino v. Gikas, 861 F.3d 296, 299 (1st Cir. 2017) (quoting Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010)).

         Franchina testified for three days and recalled the following for the jury. In or about 2002, Franchina was assigned to the North Main Street Fire Station in Providence, Rhode Island. Up until 2006, she experienced neither discrimination nor harassment by members of the Department. In fact, in her lengthy testimony, Franchina recounted numerous kind-hearted moments during this timeframe where she felt comradery with her colleagues. She explained, for example, that at the beginning of her career--as a young female among a workforce consisting primarily of males-she felt that some members of the Department took her under their wings and shielded her from individuals who sometimes got too drunk or unruly at work events.

         Far from worrying about discrimination, Franchina testified that some of her biggest concerns during her early years had to do with Department leadership wanting to promote her too quickly. That her superiors wanted to promote Franchina is unsurprising given her commendable professional record. She was one of only eighty applicants accepted to the Providence Firefighter Academy out of 2, 300 who applied her year and, once there, she graduated tenth in her class. Throughout her career her superiors noted that she "did her job . . . the way we expected it to be done" and effused that she was "on her game and knows her stuff." Franchina's Chief also regularly received compliments about her performance. Franchina, however, worried that rising up the ranks too quickly could cause resentment among more senior firefighters and testified that she actively attempted to keep leadership from assigning her to officer roles at the beginning. Nonetheless, Franchina's superiors ultimately ordered that she be promoted from Rescue Technician to Acting Rescue Lieutenant to, eventually, Rescue Lieutenant.

          Franchina's woes began in or about 2006 when she was assigned to work a shift with Andre Ferro ("Ferro"), a firefighter with a history of sexually harassing female colleagues in the Department.[4] During that shift, Franchina and Ferro were assigned to the same rescue vehicle, with Franchina serving as an acting rescue lieutenant, and Ferro assigned to be her rescue tech chauffeur. That is to say, Ferro was responsible for driving the rescue vehicle and Franchina served as his superior. Franchina and Ferro had never worked with one another prior to this point, though Franchina was aware of Ferro's dubious reputation with women and was therefore apprehensive about having to spend the shift with him.

         Ferro's notoriety 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." Franchina testified she was appalled by his comments and as his supervisor, instructed him not to say such things. She then immediately left for her office to escape him. Soon thereafter, however, an emergency call came in and Franchina and Ferro were jointly dispatched to respond in their rescue vehicle.

         During the emergency run Ferro continued with his inappropriate prattle. He asked, for example, if Franchina wanted to have children and quickly followed up with, "I could help you with that, " implying that he wanted to impregnate her. So incessant was the unprofessional chatter that Franchina was forced to tell Ferro on multiple occasions to stop talking because she was having difficulty hearing the dispatcher's instructions. Franchina further testified that she refused to engage with Ferro's uncomfortable banter, instead riding in silence or telling him to be quiet as needed.

         During the same shift, Franchina and Ferro were also dispatched on a run that took them to the Rhode Island Hospital. When they arrived, two other rescue vehicles were on the scene, meaning that a total of six firefighters were present (two in each vehicle). The firefighters entered the hospital in order to pass along reports about their respective transports (patients that had been transported to the hospital) and, after doing so, Franchina and the other firefighters (with the exception of Ferro) waited in a holding area and chatted with one another. At some point Ferro approached the group and began rubbing his nipples in a circular fashion, leapt up in the air, and screamed at Franchina, "My lesbian lover! How are you doing?" Nurses, doctors, patients, and patients' families were all present in the holding room to witness this display. Franchina testified that she was horrified and felt belittled. The other firefighters present were similarly appalled.

         Later that evening, after returning back to the station, Franchina went to her personal quarters and began changing out of her uniform. Though she had closed the door, it was not locked. A rule, however, existed in the station requiring that if an officer's door was closed, anyone seeking permission to enter had to first knock three times and wait for the officer to respond. Nevertheless, without knocking, and while Franchina was changing, Ferro opened the door to her room wearing what appeared to be only his boxers, a Providence Fire Department shirt, and socks. Franchina, who was in her undergarments, quickly grabbed a sheet off her bed to cover herself. When Franchina asked Ferro to leave, he refused. She asked a second time, and he refused yet again.

         Only after telling him to "get the fuck out" of the room did Ferro finally depart.

         Franchina never reported this repulsive behavior. She didn't have to. Following the nipple-rubbing incident at the hospital, Chief Curt Varone, a high-level officer with authority over all of the stations within the Department, called her directly because he had "gotten wind" of what had transpired. During the phone call, Chief Varone asked Franchina to recount the details of Ferro's actions. Based on Franchina's explanation, Chief Varone filed a written complaint against Ferro charging him with sexual harassment and exposing him to employment termination.[5] A hearing was scheduled to determine whether Ferro would retain his job.

         Once word spread about Ferro's disciplinary proceeding, firefighters in the North Main Street station began to treat Franchina with contempt and disdain. Firefighter Andy McDougal, a subordinate to Franchina, approached her in the kitchen several weeks before Ferro's hearing and, in front of numerous other firefighters, yelled at her and asked, "What are you trying to get him fucking fired?" Although Captain Alan Horton, the top supervisor in the North Main Street station, was present during this exchange, he neither reprimanded McDougal nor reported the incident to Chief Varone.

         The day following McDougal's kitchen outburst, McDougal--who was responsible for cooking at the station--also stated to Captain Horton that he would no longer prepare meals for Franchina. Captain Horton, however, overrode McDougal, which angered him. According to Franchina, from that point forward, the meals McDougal prepared for her made her severely ill. Following several bouts of ensuing illness, Franchina, who never had a history of gastrointestinal problems, decided to swap her meal with that of a different rescue tech. After that tech ate Franchina's meal, he, too, became ill and had to go home sick.[6]

         Starting in 2006, members of the North Main Street station also began to refer to Franchina using gendered epithets. For example, she was referred to openly as "Frangina, " a combination of her last name and the word "vagina, " which (as Franchina testified she had seen on the popular website is also a slang term used to describe an unshaved vagina. See Frangina, Urban Dictionary, (last visited Jan. 25, 2017). Additionally, Franchina explained she heard male firefighters in the station refer to her as a "bitch" with great regularity. "Who does that fucking bitch think she is?"; "I'm not going to help that fucking bitch"; "That bitch can carry her own stretcher" were common derogatory remarks hurled at Franchina.

         The men of the North Main Street station did not limit their harassment of Franchina to verbal attacks. Rather, at one point they began utilizing a group white board in one of the common areas to further taunt her. Twenty-one total insults were written on the board including: "Be careful how you talk to her, she'll bark at you, " "You get what you get, bitch, " and "Frangina leads Team Lesbo to victory." Franchina testified that she personally heard Captain Peter Spedutti, a thirty-year veteran of the Department, point at the white board and say, "I'll show her." She also later witnessed him boisterously brag to a younger firefighter about what was written on the white board. The list remained up for over fourteen hours. Although Franchina complained to Chief Michael Crawford, a superior officer in the Department, about what was being written about her on the board, the perpetrators were not reprimanded.

         Based on trial testimony, Franchina also suggested that the actions of the North Main Street station put the lives of the people of Providence at risk, including, in one instance, that of an unborn child and the child's mother. About a month prior to Franchina leaving the North Main Street station in 2007, Franchina was dispatched to a pre-natal facility in response to a pregnant mother experiencing fetal distress. In order to get oxygen to both the mother and baby, a device known as a non-rebreather was needed because the fetal heartrate was severely elevated. Firefighter McDougal, who had already been avoiding eye contact with Franchina and who did not want to work with her (or, remember, cook for her), was also on the scene. Though Franchina tasked McDougal with securing the re-breather around the patient's nose and mouth, he continued to let the device slip off, thus preventing oxygen from properly being transported to the patient. Franchina had to order him to get away from the patient so she could properly secure the device herself. Such instances of insubordination with McDougal, Franchina recalled, were common and intentional.

         Franchina was eventually transferred in 2007 from the North Main Street station to the Branch Avenue station and, initially, her experiences at Branch Avenue were good. Things, however, went south and her colleagues at that station began to display similar behaviors to those at the North Main Street station. Franchina testified that the beginning of the bad times seemed to coincide with call-back shifts in which McDougal was assigned to work in the Branch Avenue station.[7] During one callback, McDougal walked into the kitchen where members of the Branch Avenue station were convening (including Franchina) and exclaimed loudly, "affirmative action's killing this fucking job." An officer who was present did not reprimand him for this outburst. On another occasion, during a shift change, he purposely pushed Franchina into a wall when nobody was looking. Franchina complained about the incident to Chief Al Horton[8] but nothing was done.

         Franchina explained at trial that following McDougal's call-backs at the Branch Avenue station, she regularly began to be called "bitch, " "cunt, " and "Frangina." She also testified that a subordinate flicked her Lieutenant's insignia on her collar and whispered, "I will never take a fucking order from you."

         Franchina also testified to the inappropriate behavior that Branch Avenue station firefighters would exhibit on emergency runs to spite her. In one instance, a firefighter purposely failed to put a wheelchair on one of Franchina's rescue vehicles when she was responding to a patient with cerebral palsy who was wheelchair dependent for transportation. Franchina reported the incident to Chief Horton but the firefighter was not reprimanded. In another run, Franchina and a number of Branch Avenue firefighters responded to a car accident involving two individuals who were severely injured. One of them had been decapped (meaning a portion of his scalp had been severed). Franchina was able to get this victim onto a stretcher and then into a rescue vehicle but, while treating the victim, realized that none of the firefighters at the scene were behind the driver's wheel to transport the victim to the hospital. After requesting a driver numerous times from the firefighters on scene, Franchina was addressed by Lieutenant Anthony Lancellotti who, in a sour tone, barked "You'll get a driver when you get your driver." The car crash victim later died.

         During another run, Franchina and several Branch Avenue firefighters--including Lieutenant Robert Jackson, Rescue Technician Paul Tang, and Firefighter Sean McGarty--responded to a suicide-attempt victim who had shot himself in the head. Franchina was the officer in charge at the scene. Franchina ordered Jackson to assist in putting the body of the victim onto a stair chair so that he could be carried downstairs to the rescue vehicle. Jackson, however, refused to comply, folded his arms, and stated, "That's a lot of blood." McGarty was also insubordinate, and refused to comply with Franchina's directive to move the victim to the chair. McGarty quipped, "if he wanted to kill himself, maybe we should just let him." Franchina ordered the men at least four times to move the victim onto the chair. None would comply. Tang, in fact, took the chair and slammed it open, but would not help put the victim in it. Eventually Franchina had to find a police officer to assist her since her own men remained insubordinate.

         Once the suicide-attempt victim was in the rescue vehicle, Tang performed CPR on the victim. The gloves Tang wore became severely encrusted with blood and pieces of brain matter. After Tang completed CPR, he sat upright with his hands at Franchina's eye level. He then removed the gloves, purposely snapping them off in such a way as to fling the bloody debris onto Franchina's face, nose, hair, neck, eyes, ears, and mouth.

         Immediately following this incident (and as a result of it), Franchina went out on disability leave for six months' time. She also confidentially reported the incident to Chief Crawford, and though Crawford contacted the City's Equal Employment Opportunity ("EEO") Officer, the complaint form he completed noted that he believed Franchina was "blowing [the incident] out of proportion." The City's EEO officer, however, concluded differently:

there appears to be AMPLE merit to [Franchina's] claim of MULTIPLE & REPEATED violations of [Providence Fire Department] RULES AND REGULATIONS.
Even seems plausible that the pervasiveness of this behavior creates a HOSTILE WORK ENVIRONMENT for her. Also seems clear that [the Department] has FAILED to STOP the behavior.

         Amended Joint App'x at 1046 (emphasis in original). The EEO officer testified at trial that she was unaware if anyone was ever ultimately disciplined for their actions toward Franchina.

         Following her return to the Department after the six-month leave, the abuse from her colleagues continued. At a December 2009 Christmas party in the Firefighter's Union Hall, Franchina was berated by McGarty (we will call this event the "Union Hall Incident"). He screamed obscenities at her, spit as he yelled at her, and, at a whopping 6'6", attempted to use his body to block her from leaving the hall so he could continue his bellowing. He called her a "fucking doughnut, " a "fucking zero, " and a "fucking loser." Two senior officers, Lieutenant Elliot Murphy and Lieutenant Robert Jackson were both about fifteen to twenty feet away from where this harassment was occurring, yet said nothing. In fact, when Franchina, seeking assistance, called out to Lieutenant Jackson--McGarty's direct supervisor--Jackson responded, "I'm not your fucking baby-sitter" and allowed McGarty's tormenting to continue.

         In response to this incident, Franchina sought first a temporary restraining order ("TRO") against McGarty, which a Rhode Island state-court judge granted, and then a preliminary injunction, which was also granted. The injunction specifically restrained McGarty from "interfering with, molesting, harassing, annoying or contacting [Franchina] in any manner, directly or indirectly." The only exception to this injunctive relief was a carve-out allowing the two to interact with one another "on an emergency call, that is, specifically when [McGarty] is doing a call on behalf of the fire department and he is on the scene." Apart from that narrow exception, the superior court left it up to the Department to prevent Franchina and McGarty from encountering one another. Chief Michael Dillon, Assistant Chief of Operations, subsequently issued an order barring McGarty from working any callbacks in stations that had a rescue unit, thus ensuring that Franchina (as a rescue lieutenant) and McGarty would never interact. Nonetheless, Chief Scott Mello, who was in charge of scheduling, testified that he believed such an order was impossible to enforce and, moreover, that he viewed the order as "more of a suggestion." No surprise, then, that the order was not actually followed and McGarty violated it at least four separate times.

         Franchina's final day as an active-duty rescue lieutenant was October 28, 2010. That day, she arrived at the Branch Avenue Station only to discover that McGarty was on duty working there. McGarty and various other firefighters, including Chief Mello (the scheduler discussed above), were on the second-floor landing of the station, talking negatively about Franchina in a raucous manner. Franchina heard them making fun of her and loudly exclaiming, "Do you know who was in the fucking station today? That bitch was in the station." Franchina confronted the group and then reported the incident to Chief Horton. Again, no disciplinary action was ever taken against anyone as a result of this incident.

         The constant ridicule and harassment Franchina experienced caused her to be placed on injured-on-duty ("IOD") status. Still, in order to remain an active member of the Department, Franchina was required to perform various administrative tasks at the Branch Avenue Station. She testified that she performed these tasks "weekly" for a "good portion" of 2011. The abuse, however, did not stop even when Franchina was classified as IOD. While at the station, she would hear firefighters make disparaging comments about her such as "[t]he bitch is in the house, " and "F that bitch . . . thank God she's not here anymore."

         One of the Department chiefs eventually requested that Franchina no longer come into the station. Thereafter, Franchina remained employed with IOD status (for a total of three more years), but she no longer physically reported in. On November 30, 2011, Franchina filed a Charge of Discrimination with the Rhode Island Commission for Human Rights ("RICHR") and with the Equal Employment Opportunity Commission ("EEOC"). She officially retired on disability on December 19, 2013, after being diagnosed with severe post-traumatic stress resulting from the numerous work-related incidents that occurred. She testified that she can never again work as a rescue lieutenant as a result of her permanent disability, which the City does not contest. By the time Franchina officially retired, she had submitted approximately forty different written statements complaining of harassment, discrimination, and retaliation to higher-ups in the Department.

         At trial, numerous individuals besides Franchina testified to the disparities and harassment faced by female employees of the Department. Lieutenant Danielle Masse testified, for example, that women were treated as "less competent" than men and were "spoken to as if they have no authority." She also testified that when women brought issues to the Department's chain of command, leadership generally didn't take the complaints seriously or deal with them in an appropriate way. In fact, she stated that when a woman would voice a grievance, Department leadership often turned the problem around and blamed the female firefighter doing the complaining.

         There was also testimony that female employees who dated male firefighters were generally treated better than those who were not intimately involved with their male colleagues. And Chief Varone testified that there were men in the Department who openly treated their female counterparts with contempt. Another firefighter, Lieutenant Andrea Stuckus, explained at trial that she herself was followed into the women's restroom by a drunk male firefighter who had to be physically removed by other male members of the Department.

         At the end of the trial the jury found in favor of Franchina on both her gender-based hostile work environment discrimination claim, as well as her retaliation claim. It also awarded her punitive, emotional, and front pay damages. After judgment was entered for Franchina, the City filed a motion for judgment as a matter of law, a motion for a new trial, and, in the alternative, a motion to amend the judgment (by striking the punitive damages and front pay awards). After a hearing, the district court denied the City's motion for judgment as a matter of law and motion for a new trial. It did, however, strike the punitive damages award after reasoning that 42 U.S.C. § 1981a(b)(1) legally precluded a plaintiff like Franchina from recovering punitive damages from a municipality like the City. Lastly, the district judge denied the City's motion to amend the judgment by striking the jury's front pay award. In doing so, the court stated that it had independently determined, in its equitable discretion, that front pay was an appropriate remedy and thus awarded the same amount that the jury had previously determined was fair. An amended judgment was then entered.

         With this background in place, we now turn to the issues presented on appeal, highlighting additional facts when needed to put the claims into proper perspective.


         The City appeals from the denial of its motion for judgment as a matter of law, making numerous arguments as to why the decision in this case should not stand. While the core issue on appeal involves the merits of Franchina's sex-discrimination claim, the City complains of other supposed reversible errors--such as timeliness concerns and evidentiary issues--that we will also address. We review the district court's denial of the motion for judgment as a matter of law de novo. Parker v. Gerrish, 547 F.3d 1, 8 (1st Cir. 2008). In doing so, however, we do not "evaluate the credibility of the witnesses or weigh the evidence." Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 75 (1st Cir. 2006). We will reverse "only if reasonable persons could not have reached the conclusion that the jury embraced." Negron-Rivera v. Rivera-Claudio, 204 F.3d 287, 290 (1st Cir. 2000).

         A. Title ...

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