Award was for years of hostile behavior that included name-calling and assault
By Sheri Qualters
The Daily Record Newswire
PROVIDENCE, RI - After a federal judge knocked out Lori Franchina's claim for harassment based on sexual orientation, lawyers for the retired Providence fire lieutenant tapped into another theory to score an $806,000 verdict in her gender discrimination and retaliation case over her co-workers' homophobic behavior.
Just before the trial, U.S. District Judge John J. McConnell Jr. agreed with the City of Providence that there is no cause of action for harassment on the basis of sexual orientation under Title VII. But McConnell cited a 1st U.S. Circuit Court of Appeals case involving discrimination against a working mother to rule that Franchina could enhance her gender harassment claim with a "sex plus another characteristic" or "sex plus" claim.
On April 18, the jury awarded Franchina $545,000 for future wages, $161,000 for emotional damages and $100,000 for punitive damages. The award was for years of hostile behavior that included name-calling, an assault and an incident where a firefighter flicked brain matter at Franchina's face at a rescue scene.
The "sex plus" theory absolutely played a role in the verdict, said Boston attorney and co-lead plaintiff's counsel Benjamin H. Duggan, of the KJC Law Firm.
"When a federal judge instructs the jury and literally uses the subgroup 'lesbian' in his instructions, it gives the jury permission to stand up and protect and fight for a lesbian with their verdict. There is no way it didn't play a role," Duggan said.
Lead defense counsel Kevin F. McHugh, the senior assistant city solicitor in Providence, said the city plans to make several post-trial motions and will appeal the verdict to the 1st Circuit if necessary.
Workplace hostility
Franchina became a firefighter in 2002 and began having work difficulties a few years later.
First, an acting lieutenant gave her a nickname that referenced genitalia, "Frangina." Things got worse after Franchina reported several instances of harassment by a particular firefighter in 2006. That firefighter initially lost his job after he yelled "my lesbian lover" at Franchina while pinching his nipple and rubbing his tongue over his teeth, but he was reinstated several months later.
Franchina was then left out of group meals and male firefighters kept a list of things they disliked about her on a chalkboard for several days.
Several firefighters also began to defy her orders at rescue scenes. Examples included intentionally leaving Franchina alone with a potentially suicidal and homicidal patient for several minutes and refusing to treat a patient experiencing a cardiac emergency.
"The jury heard multiple examples in which people's lives were put at risk because the firefighters were being so disobedient," said co-lead counsel John T. Martin, an attorney at KJC Law Firm's Worcester office.
Two incidents in 2009 ultimately drove Franchina from the job. While treating a gunshot victim in an ambulance she told a male subordinate to remove his rubber gloves because he was spreading brain matter and blood on the equipment. The firefighter put his hands near her face and snapped blood, brain matter and other fluids into her mouth, nostrils, eyes and ears while removing the gloves. As a result, Franchina was placed on critical incident stress leave.
That December, a male firefighter backed her into a wall while screaming at her and showering saliva on her face. After a fellow lieutenant refused to intervene and the union and department failed to respond to her reports about the incident, Franchina secured a temporary restraining order, then a permanent restraining order.
During her time in the department, Franchina claims she filed written complaints about 16 firefighters and multiple complaints with the city's Equal Employment Opportunity officer.
She was granted injured on-duty status in 2010, diagnosed with post-traumatic stress syndrome and retired in 2013.
According to the city's court papers, Franchina "embarrassed and denigrated" the firefighters at rescue scenes.
The defense claimed Franchina rarely ate with colleagues because rescue was so busy and that some of the disputes about meals stemmed from Franchina's criticisms of how a certain firefighter prepared food and her unwillingness to help him with meals.
The city also asserted that Franchina's supervisor initially referred her complaints about the incident with the gloves to the EEO officer, but that Franchina did not go to see that officer until the end of 2014.
Franchina sued the city and other parties for retaliation and for harassment based on gender, sexual orientation and disability in July 2012. McConnell dismissed claims against the Providence Fire Department Firefighters Local 799 that December. The parties jointly dismissed the discrimination based on disability claim in February 2016.
'Sex plus'
In allowing the "sex plus" theory, McConnell cited the 1st Circuit's 2009 ruling in Chadwick v. WellPoint Inc.
That case arose when Laurie Chadwick sued her employer in Maine federal court, claiming that the company denied her a promotion because the decision-maker learned she had four children and was taking one college course each semester.
In reversing a summary judgement for the employer and remanding the case, the 1st Circuit held that a jury could reasonably conclude that a sex-based stereotype motivated the explanation given to Chadwick: "You just have a lot on your plate right now."
McConnell's receptiveness to the "sex plus" theory in a case about sexual orientation discrimination and the jury's verdict in a "typically conservative venue" opens the door for similar cases, Martin said.
"That incentivizes private attorneys to take the risk of prosecuting one of these cases all the way to trial as opposed to just saying that it is too hard and nobody can help you," he said.
It's equally important to clear the next hurdle and get the 1st Circuit to apply the theory to workplace discrimination based on sexual orientation, he added.
"That is very, very important for all of us, to win on that issue for such a huge population of [LGBT] people that live in Rhode Island and all the states in the 1st Circuit," Martin said.
Witness credibility
With the "sex plus" theory teed up, Franchina's lawyers used the voir dire process to weed out people with biases in favor of municipal employees or against lesbians and women, Martin said.
The plaintiff's team also faced the problem of getting jurors to believe the extreme mistreatment Franchina's colleagues and subordinates heaped on her. Martin said he saw a lot of skepticism among members of the jury when they were told of events, and realized that proving that the city's witnesses lied was critical, he said.
For example, the firefighter who was accused of flicking brain matter at Franchina offered different explanations, including that there was no blood on his gloves, that the blood had dried and that the gloves absorbed blood, Martin said. And the plaintiff's team was able point to other firefighters' sworn testimony from a 2011 hearing about the incident, he said.
"We were able to prove that they lied. I think that the jury was very angry and I think that came into play," Martin said.
He said that testimony from former Chief Curt Varone was particularly potent. Franchina's team defeated the city's motion in limine to exclude Varone, who retired in 2008.
Varone testified that he was afraid for Franchina and concerned about how people in the chain of command would respond to her complaints after his retirement. Those statements supported Franchina's story about the department's culture of permissive retaliation and damaged the credibility of department leaders who testified after Varone, Martin said.
"That was one particularly powerful moment," he said.
Published: Mon, May 09, 2016
