O'Rourke v. City of Providence

• Decision Date: 02 October 2000
• Docket Number: 00-1008,Nos. 99-2346,s. 99-2346
• Citation: 235 F.3d 713
• Parties: (1st Cir. 2001) JULIA M. O'ROURKE, Plaintiff, Appellee, v. CITY OF PROVIDENCE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 713

235 F.3d 713 (1st Cir. 2001)

JULIA M. O'ROURKE, Plaintiff, Appellee, v. CITY OF PROVIDENCE, Defendant, Appellant.

Nos. 99-2346, 00-1008.

United States Court of Appeals, For the First Circuit.

Heard Oct. 2, 2000.

Decided January 8, 2001.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Ronald R. Lagueux, Chief U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Kevin F. McHugh, Assistant City Solicitor, for appellant.

Gerald C. DeMaria, with whom James A. Ruggieri, Higgins, Cavanagh & Cooney, and Patricia E. Andrews were on brief, for appellee.

Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Two different juries have now found the Providence Fire Department liable under Title VII to one of its first women firefighters, Julia O'Rourke, for that form of sex discrimination known as sexual harassment. O'Rourke asks us to reinstate the first verdict for $275,000. The City defends the trial court's decision to vacate that verdict and order a new trial but complains that the second verdict, for $200,000, based on evidence over a shorter period of time, is unsound.

We conclude that the trial court erred when it vacated the first verdict on the grounds that evidence from before the charge period had been erroneously admitted. The evidence was properly admitted to prove a continuing violation and it would have been error to exclude it. We reinstate the original verdict and remand for recalculation of the attorneys' fees due plaintiff for the two trials. In particular, this opinion:

1) clarifies the continuing violation doctrine as to serial violations;

2) discusses the interplay between that doctrine and the law of sexual harassment;

3) applies recent Supreme Court case law in hostile work environment cases as to the standard for employer liability for (i) co-worker conduct and (ii) supervisor conduct; and

4) analyzes whether the damages award based largely on emotional distress and psychological harm is excessive.

I.

We summarize the evidence at trial in the light most favorable to O'Rourke. See Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1186 (1st Cir. 1996).¹

Until 1990, no female firefighters had ever served in the City of Providence Fire Department. In January, 1992, O'Rourke and six other women who had passed a written examination were admitted to the City's firefighter six-month training program, along with 77 male trainees. O'Rourke was hired under the City's newly implemented affirmative action policy.

The structure of authority in the fire department starts with the Commissioner of Public Safety, followed by the Chief of the Department. Next is an Assistant Chief of the Department and a Deputy Assistant Chief, followed by several Battalion Chiefs, Captains, and Lieutenants. Each of the fourteen stations (called "Engines") is headed by a captain, who oversees the station's several groups, each of which is headed by a lieutenant or by the station captain. That is the overall management command structure. There were no women in the command structure directly over O'Rourke at any time in question. Further, O'Rourke had no women co-workers in her group when she was assigned to the various Engine companies. She was the first and the lone woman wherever she worked in the Department.

In January of 1992, the Department Chief promulgated a sexual harassment policy. The policy prohibited firefighters from keeping sexually explicit books and magazines, viewing sexually explicit movies, or making sexual jokes at their respective stations. The superior officer at each station was responsible for enforcing the policy, and they had been trained to do so. New firefighters were to be instructed during two hours of sensitivity training, including a component on sexual harassment, to be incorporated into the curriculum of their six-month training program.

O'Rourke underwent this six-month training program. During this period and often in the presence of supervisors, overtly sexual behavior was directed toward O'Rourke. For example, during a class break, a male trainee, Ferro, passed around a video camera playing scenes of Ferro having sex with his girlfriend. The instructor was in the classroom and did nothing. Ferro also discussed his sexual prowess, endurance, penis size, and his sexual encounters during lunch breaks, just outside the training facility. These incidents occurred in the presence of officers.

O'Rourke expressed her disgust and discomfort directly to Ferro, but Ferro was undeterred. During a training exercise in a pool and in the presence of an officer of the academy, Ferro pointed to O'Rourke's breasts and commented that she was "stacked." Ferro constantly discussed sexual positions and oral sex. O'Rourke "just blocked them out." While standing in line for roll call, which was conducted by various academy officers, Ferro, standing behind O'Rourke, would frequently expound his opinion that women are pigs.

Ferro's behavior was not unique. Another male trainee, McDonald, snapped O'Rourke's bra, commented on her scent, and asked O'Rourke if another female trainee, whom McDonald called a "dyke," ever looked at O'Rourke while they were changing clothes. McDonald also asked O'Rourke, in the presence of several other firefighters, if she was on birth control. He said he wanted to know so that they could all "bang" her at a union party that night. Common conversation was whether firefighters had gotten "banged" over the weekend. Some of these incidents occurred in the presence of training academy officers. The commentary made O'Rourke so uncomfortable that she began trying to camouflage her body by wearing oversized shirts. She did not complain to any of the officers because she "didn't want to cause any waves" and "just wanted to get through the academy."

After completing the training program, O'Rourke accepted a temporary assignment in the office of the Fire Department Chief, Chief Bertoncini. She worked for Chief Bertoncini from June to September, 1992, and after a brief layoff, from November, 1992, until March, 1993. She performed administrative tasks under the instruction of two women who worked directly for the Chief. In O'Rourke's presence, the Chief sat on the lap of his preferred secretary with his arm around her shoulder, and referred to the other secretary (who was not present) as a "stupid fat bitch" and commented on her breast size.

During that time, McCollough, another firefighter working near O'Rourke, blew in her ear, rubbed his cheek against hers, and stood over her with their bodies squarely touching as she made copies. He also asked her out on dates at least twelve times, all of which O'Rourke declined. O'Rourke did not complain to Chief Bertoncini at the time for fear of being labeled a whiner.

Also while at Chief Bertoncini's office, O'Rourke encountered her former fellow trainee Ferro, who continued to discuss his sexual encounters in front of her and urged O'Rourke to "have" him, promising that if she did, she would never want another man. These comments often were made in the presence of officers. O'Rourke felt distinctly uncomfortable around Ferro.

Chief Johnson, the superintendent of the carpentry shop located in the Fire Prevention Bureau, told O'Rourke that McDonald (the one who had snapped O'Rourke's bra during training) talked about her a lot and was crazy about her. O'Rourke made it clear to Chief Johnson that she was not interested.

In March of 1993, O'Rourke was assigned to Engine 5, Group B. The Engine company consisted of four groups, each with an officer in charge, one of whom also served as captain of the house. O'Rourke was the only female firefighter at Engine 5. The company living quarters consisted of a common bathroom, kitchen, and sitting room; each firefighter had a private bedroom. A typical shift involved two days and two nights on, four days off. O'Rourke saw stacks of pornographic magazines in the common sitting room and bathroom, which sometimes were open to a page displaying pictures of naked men and women engaged in sexual acts. O'Rourke saw male firefighters reading the magazines, which made her "very uncomfortable." The officers knew the magazines were there and did nothing. This inaction clearly violated the harassment policy. O'Rourke, however, did not complain.

In the summer of 1993, Lieutenant Young, who was acting head of O'Rourke's group, suggested that the group take a patrol ride through their district in a fire truck. Lieutenant Young offered the other firefighters beer, which O'Rourke declined. While they were driving through a part of the district that was known as a popular hangout for men, Lieutenant Young wrote O'Rourke's name and the station phone number on pieces of paper and threw them out the window to the men on the street below. O'Rourke asked him to stop, but Lieutenant Young laughed and continued.

In the fall of 1993, O'Rourke injured her hand and was out for four or five months, but continued to go to the station weekly to pick up her paycheck. During one such visit, O'Rourke encountered her commanding officer, Lieutenant Cionfolo. Lieutenant Cionfolo asked O'Rourke how she met her boyfriend. Then, referring to one of the women in Chief Bertoncini's office, he told O'Rourke "you're just a virgin and [the woman] lies flat on her back."

Also during this time, a chief officer told O'Rourke's brother Coley, also a City of Providence firefighter, to warn her that there was a closed circuit television hidden in her bedroom at Engine 5. O'Rourke, scheduled to return to work the next week, called her commanding officer, Lieutenant Cionfolo, and asked him to investigate the rumor. She asked him not to tell anyone or "make a big thing out of it if it was just a rumor." Lieutenant Cionfolo arranged for O'Rourke to meet him at the station the next day to investigate and he...