Wedow v. City of Kansas City, Mo.

• Decision Date: 24 March 2006
• Docket Number: No. 04-1443.,No. 04-1704.,04-1443.,04-1704.
• Citation: 442 F.3d 661
• Parties: Anne WEDOW, Kathleen Kline, Cross-Appellants/Appellees, v. CITY OF KANSAS CITY, MISSOURI, Appellant/Cross-Appellee. Women in Fire Services, Inc. Amicus on Behalf of Cross-Appellants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

442 F.3d 661

Anne WEDOW, Kathleen Kline, Cross-Appellants/Appellees, v. CITY OF KANSAS CITY, MISSOURI, Appellant/Cross-Appellee.

Women in Fire Services, Inc. Amicus on Behalf of Cross-Appellants/Appellees.

No. 04-1443.

No. 04-1704.

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2005.

Filed: March 24, 2006.

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Douglas McMillian, argued, Kansas City, MO (Saskia Jocobse, Kansas City, on the brief), for appellant.

Karen K. Howard, argued, Kansas City, MO (Ann E. Robards, Kansas City, Sherry Leiwant, Jennifer K. Brown and Christina Brandt-Young, New York, on the brief), for appellee.

Before LOKEN, Chief Judge, HANSEN and ARNOLD, Circuit Judges.

[PUBLISHED]

HANSEN, Circuit Judge.

Anne Wedow and Kathleen Kline, both battalion chiefs with the Kansas City Fire Department, brought this employment discrimination suit against the City of Kansas City, Missouri (City), asserting discriminatory treatment in clothing and facilities on the basis of their sex and also alleging retaliation. Ms. Kline and Ms. Wedow each prevailed in individual jury trials. The district court¹ entered judgment in their favor on the juries' verdicts but denied their requests for equitable relief. The City now appeals the district court's denial of its motions for judgment as a matter of law, and Ms. Wedow and Ms. Kline cross appeal the district court's denial of equitable relief. We affirm.

I.

When considering the denial of a motion for judgment as a matter of law, we review the district court's decision de novo, viewing the evidence in the light most favorable to the jury's verdict. Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1050 (8th Cir.2005). Ms. Wedow and Ms. Kline have been employed by the Kansas City, Missouri, Fire Department as firefighters since 1977. The City promoted them to the rank of battalion chiefs following their prior discrimination lawsuit against the Fire Department. See Kline v. City of Kansas City, Mo., Fire Dep't, 175 F.3d 660 (8th Cir.1999) ("Kline I"), cert. denied, 528 U.S. 1155, 120 S.Ct. 1160, 145 L.Ed.2d 1072 (2000).

An understanding of certain aspects of the discrimination claims litigated in the first suit is necessary to this appeal. In Kline I, the plaintiffs sought damages for sex discrimination in their employment, a hostile work environment, and retaliation based upon acts occurring from September 1992 to July 1997. During the trial, the plaintiffs sought to introduce evidence that the Fire Department provided them with inadequate protective clothing and inadequate bathroom and shower facilities to support their claim of a hostile environment. The district court did not permit the evidence to be admitted, concluding that, although the charge before the Equal Employment Opportunity Commission (EEOC) had alleged a hostile environment, the evidence concerning inadequate clothing and facilities had not been listed in the EEOC charge. Kline I, 175 F.3d at 668. Ms. Kline prevailed at trial on her hostile environment and retaliation claims and on part of her disparate treatment claim; Ms. Wedow did not prevail on any claims in Kline I.

On appeal in Kline I, we held that the district court erred by admitting only evidence recited in the EEOC complaint because all of the work circumstances were relevant to the hostile environment claim, including the evidence of inadequate clothing and facilities. Id. We concluded, nevertheless, that the error was harmless in that instance. Ms. Kline prevailed on the issue of liability with regard to her hostile environment claim in Kline I so the clothing and facilities evidence could only have made an impact on the issue of damages. We concluded that there was no harm because the clothing and facilities conditions "were manifestly less severe and pervasive than the ones for which Ms. Kline prevailed." Id. Thus, the excluded evidence likely would not have affected the nominal $1 damage award. Id. at 668-69. As to Ms. Wedow's hostile environment claim, we concluded that the district court properly granted summary judgment to the Fire Department because the clothing and facilities evidence offered was not so severe or pervasive so as to create an abusive working environment necessary to the hostile environment claim. Id. at 669.

Ms. Wedow and Ms. Kline filed new EEOC charges in 1997, alleging ongoing sex discrimination through the City's failure to provide them with adequately fitting protective clothing or adequate facilities (i.e., private bathrooms, shower facilities, or changing areas). They then filed the current lawsuit, alleging discriminatory treatment and retaliation on the basis of their sex,² in violation of Title VII of the Civil Rights Act of 1964, as amended by the 1991 Civil Rights Act, 42 U.S.C. § 2000e-2000e-17 (2000). This case proceeded to separate jury trials where each of the plaintiffs prevailed.

Viewed in the light most favorable to the juries' verdicts, the evidence in the trials showed the following. Firefighters are each issued two sets of personalized protective clothing called bunker gear, consisting of a coat, pants, boots, helmet, gloves, a tool belt, and a self-contained breathing apparatus. Two sets are necessary because if protective gear becomes wet or soiled with chemicals at one fire, there is a danger of injury from steam when the same gear must be worn at another fire that day. The protective clothing must fit properly to ensure that the body is protected from injury due to smoke, water, heat, gasoline, and chemicals and to ensure the mobility needed while fighting a fire. The City issued and required Ms. Wedow and Ms. Kline to wear ill-fitting male firefighting clothing, although female clothing and gear were available and management officials knew of sources from which female gear could be obtained. Because the protective clothing did not fit Ms. Wedow and Ms. Kline properly, they suffered injuries from fire and chemicals when the coats would not close properly, or too large hats and boots would fall off while fighting a fire. Ms. Wedow's and Ms. Kline's movements were cumbersome and restricted by pants that caused them to trip or prevented them from easily climbing ladders. Excess length in the fingers of gloves made it difficult to grip objects such as the fire hose. The City's failure to procure protective clothing tailored for women and its provision of only male-sized protective clothing to Ms. Wedow and Ms. Kline made their jobs more difficult and more hazardous than was necessary.

The evidence demonstrated that despite their complaints, no one in the Fire Department made any effort to provide Ms. Kline and Ms. Wedow with adequately fitting protective clothing from 1990 through October 1998. In October 1998, the Fire Department provided Ms. Kline with one set of female-sized protective clothing, although each male firefighter is given two sets of properly fitting clothing. In late 1998, Ms. Wedow received a female-sized pair of bunker pants and a male-sized coat; she never received a complete set of adequately fitting protective clothing during the relevant time period.

Ms. Kline and Ms. Wedow also complained of a lack of adequate restrooms, showers, and private changing facilities (referred to collectively as "facilities"). Showering at the station after fighting a fire is necessary to maintain good health when serving in 24-hour shifts. At a number of stations that Ms. Wedow and Ms. Kline visited on a daily basis as battalion chiefs, the restrooms were located in the male locker rooms with the male shower room, doors were not secure, males had the keys, and where female restrooms existed, they were unsanitary and often used as storage rooms. Food and water for the station's pet dog were kept in the women's room in two stations and sexually explicit magazines and a poster were kept in the female restroom in station 23. Most of the female restrooms that existed did not contain shower rooms and in some stations, the women's shower could be accessed only through the male bunkroom.

Department officials were aware of complaints about the facilities as early as 1993. From 1994 through 2000, the Fire Department submitted yearly budgets to the City requesting money for female locker room upgrades, and every year the City allocated money for this purpose, but the money was diverted to a whole-station upgrade at station 4, which already had a female restroom.

The evidence of retaliation revealed that from 1997 through 2000, Ms. Wedow and Ms. Kline were not provided opportunities to work in "shift designation" positions. These designations allow the designee to oversee particular subject matter functions that arise during the shift. They do not entitle a firefighter to any extra pay, but they do provide on-the-job experience that is critical to career advancement. Male battalion chiefs and males of lesser rank than Ms. Wedow and Ms. Kline received these career-enhancing designations, while Ms. Kline and Ms. Wedow were denied the same opportunities. The evidence demonstrated that battalion chiefs and captains who had served in such designated capacities were promoted. Ms. Kline also complained that she was denied opportunities to work "out of class" -temporarily assuming the duties of higher ranked officials. Because this experience is good preparation for promotional tests, it also enhances the ability for career advancement.

A jury awarded Ms. Kline $40,000 on her claim of sex discrimination with regard to clothing and facilities and $10,000 on her retaliation claim for the City's failure to assign her additional duties as a Hazardous Materials Officer, Safety Officer, EMS Officer, and Shift Advisor, and for not permitting her to work out of class as Deputy Chief. A separate jury awarded Ms. Wedow $225,000 on her clothing and facilities discrimination claim and $60,000 on her retaliation claim for the City's failure to assign her additional duties as a...