NC Sexual Harassment Suit to Proceed Despite Most Claims Being Dismissed

A sexual harassment and discrimination lawsuit filed by a division chief with the Ashville Fire Department will proceed, despite most of the claims having been dismissed. That was the bottom line of a lengthy ruling by US District Court Chief Judge Martin Reidinger.

Division Chief Joy Ponder served as a shift commander in Ashville Fire Department the until June of 2019, when she was reassigned. Prior to her transfer, several of her responsibilities had been taken away from her. The facts as explained by the court:

  • Plaintiff was the Division Chief overseeing the AFD’s A-Shift.
  • In that role, the Plaintiff supervised the fire suppression and emergency response activities of twelve fire stations in Asheville, including three battalion chiefs and seventy-five firefighters. Division Chief is the highest-ranking position ever held by a female at the AFD, and the Plaintiff was the only female to have ever held a Division Chief position responsible for supervising a shift at the AFD.
  • Prior to the Plaintiff’s transfer, some of the Plaintiff’s responsibilities were removed over a two-year period.
  • First, her responsibilities related to the AFD’s Lieutenant Testing Process were removed and given to a male employee.
  • The Plaintiff’s responsibilities related to health and safety matters were also removed and given to a male employee.
  • Further, in 2018, the Plaintiff was not selected for training to become a certified instructor in the AFD’s “Blue Card” management process while male chiefs — including four battalion chiefs, the Operations Chief, and Deputy Chief Christopher Budzinski — were selected.
  • Similarly, the Plaintiff had to go through a “big ordeal” to receive credit for classes she took in a Chief Academy program while male employees did not have the same trouble receiving credit.
  • On two other occasions, the Plaintiff’s desk was given to a male employee while she was given another desk that was “almost worn out” and “falling apart,” and the Plaintiff was not permitted to wear her AFD uniform to the North Carolina General Assembly while male officers had previously done so in violation of AFD policy.
  • The parties dispute whether the Plaintiff’s transfer was communicated truthfully to other employees at the AFD.
  • Chief Burnette and Deputy Chief Budzinski instructed the Plaintiff to tell others that she had agreed to the transfer.
  • Later, Deputy Chief Budzinski told other employees at the AFD that the Plaintiff had “graciously volunteered” or “graciously accepted” the transfer.
  • The Plaintiff disputes this characterization because she did not agree to the transfer.
  • Plaintiff claims that her transfer was the result of sex-based discrimination.
  • The parties dispute the extent to which Chief Burnette, Deputy Chief Budzinski, and the Plaintiff discussed the Plaintiff’s alleged performance deficiencies prior to June 12, 2019.
  • The Plaintiff described approximately four other similar interactions with Chief Burnette between March of 2017 and June of 2019.
  • On one such occasion Chief Burnette spoke to the Plaintiff in an aggressive manner after a staff meeting and called her a “poor leader” and a “disappointment,” but afterward offered to give her a hug.
  • Chief Burnette used similar language during the June 12, 2019 meeting when the Plaintiff was transferred out of her role overseeing the A-Shift.
  • The Plaintiff feared for her job during these interactions with Chief Burnette and described herself as “upset” and “embarrassed” following these interactions.
  • During these interactions, the Plaintiff also told Chief Burnette that he needed to “stop doing this,” that she wanted other individuals or a Human Resources Representative present, and that she found the June 12, 2019 meeting to be “kind of intimidating and threatening.”
  • Although Chief Burnette yelled or lost his temper with other employees, other employees at the AFD observed Chief Burnette treat the Plaintiff in a more hostile manner than the male chiefs at the AFD.
  • Other employees at the AFD also explained that it is highly unusual for an employee to be involuntarily transferred to a special project assignment or a different schedule, that such a transfer is viewed as a punishment, and that such a schedule change creates hardship for an employee’s personal life.
  • The Plaintiff reported to work in her new role on June 17, 2019.
  • That morning, the Plaintiff and Chief Burnette had another interaction where Chief Burnette “started whispering in [her] ear” and told the Plaintiff to report to his office “if [she] knew what was good for [her].”
  • Chief Burnette refused the Plaintiff’s request to have another individual with them in the meeting.
  • Barbara Berry, the administrative assistant at the AFD, witnessed this interaction between the Plaintiff and Chief Burnette and explained that she “has never seen a male officer treated in this manner within the Department.”
  • Later that day, the Plaintiff left work under FMLA leave.
  • While the Plaintiff was on FLMA leave, she began seeing mental healthcare providers for anxiety and trouble sleeping that started after her transfer.
  • The Plaintiff also filed a grievance with the City of Asheville, alleging that she was involuntarily transferred from her position, that she was subjected to a hostile and harassing work environment because of her gender, and that she was retaliated against for advocating for health and wellness issues within the AFD and for taking FMLA leave.
  • The City of Asheville conducted an investigation, and, on December 19, 2019, the investigator issued a report denying the Plaintiff’s grievance.

Chief Ponder’s suit alleges sexual harassment, sexual discrimination, intentional infliction of emotional distress claim, negligent infliction of emotional distress claim, and sexual discrimination based upon disparate treatment. Judge Reidinger dismissed all of Chief Ponder’s claims, with the exception of the disparate impact claim. He explained his reasoning as follows:

  • Title VII provides that an employer shall not “discriminate against any individual … because of such individual’s … sex.”
  • To establish a prima facie case of discrimination, a plaintiff must show that: (1) she is a member of a protected class; (2) her employer took an adverse action against her; (3) she had been fulfilling her employer’s legitimate expectations at the time of the adverse action; and (4) the adverse action occurred under circumstances that raise a reasonable inference of unlawful discrimination, including because the employer left open the position or replaced the plaintiff with someone outside the protected class.
  • If the plaintiff presents a prima facie case of discrimination, then “the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.”
  • If the defendant meets its burden of production, then the presumption created by the prima facie case is rebutted and “drops from the case.”
  • Once the employer satisfies its burden, the burden then shifts to the plaintiff to show that the defendant’s proffered reason is pretextual.
  • The parties do not dispute that the Plaintiff is a member of a protected class and, therefore, the Plaintiff has established the first element of her prima facie case of discrimination.
  • Under the second element … “a plaintiff need not ‘show that [s]he was a perfect or model employee. Rather, a plaintiff must show only that [s]he was qualified for the job and that [s]he was meeting her employer’s legitimate expectations.'”
  • The Plaintiff has presented evidence that she had previously received excellent performance reviews; that she was considered a “stellar employee” by others at the AFD, including Chief Burnette, that she was named the AFD’s “Most Outstanding Employee” by her peers in 2017, after she had become a Division Chief; and that there was no documentation in her personnel file indicating that she had been subject to any formal disciplinary action or that she had received any informal coaching sessions related to her job performance.
  • Under the third element needed to establish a prima facie case, “[a]n adverse [employment] action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”
  • The Plaintiff retained her title and salary following her transfer, and Chief Burnette testified that the transfer was not a demotion.
  • This evidence presented by the Plaintiff, when viewed in the light most favorable to her, creates an issue of material fact as to whether the Plaintiff’s transfer was an adverse employment action.
  • Under the fourth element required to establish a prima facie case of discrimination, the parties do not dispute that the Plaintiff’s supervisory responsibilities over the AFD’s A-Shift were assumed by a male employee.
  • The Plaintiff also presented additional evidence such that a reasonable juror could infer that the Plaintiff’s transfer was the result of unlawful discrimination.
  • The Plaintiff also presented a forecast of evidence that there were other events suggestive of potential discrimination leading up to the transfer from which a reasonable juror could infer that the Plaintiff’s transfer was discriminatory.
  • For example, the Plaintiff presented evidence that she had other job responsibilities removed and given to male employees, that she was not selected to be trained as a “Blue Card” instructor while all male employees were selected, that she had trouble receiving credit for classes she took in the Chief Academy program, that her desk was given to a male employee and replaced with a desk that was “falling apart” and that she was not permitted to wear her AFD uniform to the N.C. General Assembly while male employees had done so in the past in violation of AFD policy.
  • Viewing the forecast of evidence in the light most favorable to the Plaintiff as the nonmoving party, the Plaintiff has presented evidence creating genuine issues of material fact as to the elements of her prima facie case.
  • The Defendants have articulated a legitimate, nondiscriminatory reason for the Plaintiff’s transfer by stating that the Plaintiff was temporarily transferred out of her role supervising the AFD’s A-Shift because she exhibited performance deficiencies in that role.
  • However, “[t]he record is replete with genuine issues of material fact that go to the heart of the pretext issue.”
  • For all these reasons, the Plaintiff has cast sufficient doubt on the Defendants’ proffered reason for the transfer.
  • Accordingly, the Defendants’ Motion for Summary Judgement is denied with respect to the Plaintiff’s claim that the Defendants transferred the Plaintiff out of her role supervising the AFD’s A-Shift because of her sex in violation of Title VII.

Here is a cop of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
x

Check Also

FDNY Firefighter Sues Alleging Race Discrimination and Retaliation

An FDNY firefighter who claims he was racially harassed and physically assaulted at a firehouse celebration, has filed suit in federal court alleging race discrimination and retaliation against the city. Alonzo Baker filed suit today in US District Court for the Southern District of New York.

Nashville Firefighter Claims Discipline Over Sick Leave is Retaliation

A Nashville firefighter who is suing the city contending his earlier discipline violated his First Amendment rights, has been disciplined again resulting in him amending his original complaint to include retaliation. The complex case involves firefighter Josh Lipscomb, who is a comedian under the stage name Josh Black.