Franchina v. City of Providence

• Decision Date: 25 January 2018
• Docket Number: No. 16-2401,16-2401
• Citation: 881 F.3d 32
• Parties: Lori FRANCHINA, Plaintiff, Appellee, v. CITY OF PROVIDENCE, Defendant, Appellant, Providence Fire Department; Providence Firefighters Local 799, Defendants.
• Court: U.S. Court of Appeals — First Circuit

881 F.3d 32

Lori FRANCHINA, Plaintiff, Appellee,

v.CITY OF PROVIDENCE, Defendant, Appellant,Providence Fire Department; Providence Firefighters Local 799, Defendants.

No. 16-2401

United States Court of Appeals, First Circuit.

January 25, 2018

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 pay¹ 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...