By David E. Worley
In Smith v. City of New Smyrna Beach (116 FEP Cases 1973 (M.D. Fla. 2012)) a female firefighter’s alleged facts on claims of sex discrimination and retaliation were sufficient to survive summary judgment when she was suspended for using profane language. Using such language was common in the workplace and no one else had received a suspension. Additionally, a hostile work environment may exist. Taken in a light most favorable to the Plaintiff, the court concluded, the facts were sufficient so that a jury might find the Plaintiff was treated adversely because of her gender.
The Plaintiff was suspended after saying “they can kiss my ass,” which may have been directed at the administration. The Plaintiff claimed she was directing it at a co-worker who was harassing her. She had previously been warned not to use profane language when her supervisor told her that it is not how a lady should speak. She had also been subject to a variety of unwelcome conduct which was arguably because of her gender.
The court performed the standard discrimination claim analysis:
Initially, the Plaintiff bears the burden of showing that: (1) she belongs to a protected class; (2) she suffered an adverse employment action; (3) her employer treated her less favorably than other similarly situated individuals outside of her protected class; and (4) she was qualified for her job.
Central to the court’s decision that she had been subject to an adverse employment action was that no other employees had been disciplined for using profanity:
There are conflicting accounts as to what Plaintiff said and to whom she said it. Given these conflicting accounts, whether Plaintiff directed her profanity at the administration is a question for the factfinder. If the most she was “guilty” of was cursing generally, not at the administration, then a reasonable factfinder could find that she was treated less favorably than her male counterparts, who allegedly curse all the time but are not disciplined for it. As such, Plaintiff has established a prima facie case of a discriminatory tangible employment action.
The Court declines to determine whether Fire Chief Hawver, Chief Wofford, Chief McCallister, and Lieutenant Ofide were, in fact, similarly situated comparators despite their higher rank than Plaintiff. The fact that “others [cursed] with Ofide present” on “numerous occasions”, that “every” male firefighter cursed, and that Kirsch, a firefighter/paramedic who shared the same rank as Plaintiff , cursed is enough to demonstrate that Plaintiff was treated differently from similarly situated male counterparts.
The sex discrimination claim was also supported by a variety of gender-based unwelcome conduct. Again, the court made no indication whether the claims made by the Plaintiff were meritorious, but they were sufficient to make a prima facie case. Although the employer argued her profane language and insubordination were a legitimate reason for the suspension and ultimate termination, the disparate treatment was enough to indicate the employers reasoning was pretextual.
Regarding the retaliation claim, because the court already found a colorable claim of sex discrimination, her complaints about sex discrimination are therefore a protected activity. Her suspension and later termination could therefore be found to be retaliatory given the proximity in time, as well as statements made by her supervisors advising her that complaints would be detrimental to her career.
