$444,000 Sexual Harassment Verdict in Florida Upheld

The 11^th Circuit has affirmed a $444,000 jury verdict against the New Smyrna Beach Fire Department in favor of a female firefighter who sued for sexual harassment, discrimination, and retaliation.

Firefighter/paramedic Melissa Smith was terminated in 2008 following what appeared to be a series of disciplinary infractions. Her termination was upheld by an arbitrator who found that the department had “just cause” to fire her.

Smith sued under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992, claiming that the disciplinary charges were themselves discriminatory in so far as male firefighters who engaged in the same behavior were not disciplined. She also claimed she was subjected to a sexually hostile work environment and retaliated against when she complained. In the court’s own words:

• Following a six-day trial, a jury entered a verdict in Smith’s favor on all her claims, and awarded her $244,000 in lost compensation and $200,000 for emotional pain and mental anguish. The district court ordered Smith reinstated as a firefighter
• The City contends that the circumstantial evidence presented at trial failed to show that it intentionally discriminated against Smith, that its reasons for terminating her were pretextual, or that the hostility in the workplace was sufficiently “severe or pervasive.” The City also argues that the district court abused its discretion in refusing to admit into evidence an arbitration award in which the City was found to have “just cause” for Smith’s termination, that the court erred in instructing the jury on the causation element of Smith’s retaliation claim, and that the court should have granted the alternative motion for a new trial.

The complaint lists numerous examples of disparate treatment where Smith was disciplined for matters that similarly situated males were either not disciplined for, or were given much less punishment.

• Viewing the evidence in the light most favorable to Smith, a reasonable jury could have inferred intentional discrimination from the fact that Kirsch, a male firefighter/paramedic, was charged with willful neglect of duty and received significant penalties, but unlike Smith, was not terminated or even suspended. Similarly, as to the charge of insubordination, Smith presented evidence that Dearwester, a male firefighter, was insubordinate to her during a medical call and acted in a “highly unprofessional” manner, but Dearwester did not receive a formal reprimand for insubordination. On the basis of similar conduct, Smith, on the other hand, received a 48-hour suspension without pay for insubordination.
• Additionally, Smith testified that she was not allowed to change shifts, was denied proper gear, and was yelled at or disciplined in situations where male firefighters were not similarly reprimanded. Lieutenant Ofide verbally reprimanded Smith for cursing, and she was written up for saying “kiss my ass,” but numerous firefighters testified that male firefighters did not receive any disciplinary action for engaging in similar language. During her suspension, the City instructed Smith that she could not return to the firehouse, but Farmer, a male firefighter, was permitted to go to the firehouse and have dinner following his termination. Therefore, in evidence before the jury were numerous instances of situations in which Smith was treated worse than male firefighters.
• Based on our review of the record, we conclude that Smith presented a “convincing mosaic” of circumstantial evidence by which a reasonable jury could have inferred that the City was motivated by discriminatory intent to suspend and ultimately terminate Smith.
• Accordingly, the district court did not err in denying the City’s motion for judgment as a matter of law on this issue.
• [A]fter reviewing the entirety of the evidence in the light most favorable to Smith, we hold that fair-minded jurors could reasonably have concluded that Smith’s workplace was “sufficiently severe or pervasive” to alter the terms and conditions of her employment in a discriminatory way.
• Reasonable jurors could have concluded that, based on the increasing frequency and seriousness of the harassment up until the point of her termination, Smith endured an objectively hostile work environment to which male firefighters were not exposed.
• From the beginning of her employment, when she was only the second woman to work at a fire department with between 39 and 51 employees, Smith, because of her gender, was subjected to an environment at the fire department that undermined her ability to perform as a firefighter. Numerous firefighters expressed their opinions that women were not fit for fire service and that they did not want to work with women. Smith’s male superiors asked when she was going to get pregnant; Deputy Chief McCallister expressed the hope that Smith would become pregnant so that she could work as a secretary rather than a firefighter; and Smith lost certain job privileges after she did become pregnant. Smith was also subjected to derogatory comments based on her gender, including being called “split tail.” When Smith brought up these issues, she was ignored, told that no one would come to her aid, or generally dissuaded from pursuing further action.
• Moreover, in this day and age, in light of the other evidence presented, the jury was permitted to consider the nearly complete absence of women firefighter/paramedics from a department the size of New Smyrna Beach’s as evidence of the inhospitable working conditions for women at that department. Indeed, it would certainly be reasonable to infer from this evidence that women were unwelcome, or, at best, barely tolerated, in the fire department.
• The district court did not abuse its discretion in excluding the arbitration award. The arbitration award had little, if any, probative value because the arbitrator applied a standard that is not easily relatable to the Title VII standard and did not discuss Smith’s sex.
• [T]here was significant risk of unfair prejudice and jury confusion in admitting the award. As the district court noted, if the arbitration award had been admitted, the jury may have attempted to conform its decision to the arbitrator’s, despite the differing standard and issues. The district court’s reasoned decision to exclude the arbitration award in its entirety in this case was not an abuse of discretion.

Smith, who has already been reinstated to the department, was quoted by the Daytona Beach News Journal as saying: “I’m super excited because I get to get back to work. No more lawsuit or appeal hanging over my head.”

Here is a copy of the ruling: Smith v New Smyrna Beach

Here is news coverage of the case.