By Erica Shelley Nelson and Brennen Johnson
In Smith v. City of New Smyrna Beach, a U.S. Court of Appeals upheld a jury decision awarding a former female firefighter a total of $444,000 in damages for the gender-based discrimination she suffered from the city of New Smyrna Beach, Florida. The female firefighter sued the City for creating a hostile work environment and wrongfully terminating her. At trial, the jury agreed with all of her claims, resulting in the substantial award. Although the City appealed the verdict, the Court of Appeals affirmed the results of the trial, including the substantial monetary award and the female’s reinstatement as a firefighter.
Melissa Smith was hired by the City in 2003, where she worked as a firefighter paramedic until her termination in 2008. Smith began facing gender discrimination from the very beginning of her employment. In her initial interview, the Fire Chief told her that he “only really hired men that hunt, fish or camp.” When she showed up for work, she found that male firefighters had covered her manual with the front of a Cosmopolitan magazine. The only other female working with the fire department told Smith: “Keep your head down and your mouth shut… you’ll get through this, but it’s going to be difficult.”
Over the next five years, superiors regularly disciplined Smith differently than male firefighters. She was often written up for trivial issues like minor uniform violations, swearing, failing to wash a vehicle, or washing a vehicle when unnecessary, while male firemen who engaged in similar behavior received no reprimand. Leading up to her termination, Smith began to face “rule changes” that targeted women. Such rules included a ban on “girl magazines,” although firefighters were permitted to have pornographic, hunting, and rifle magazines. Another new rule prohibited Smith from bringing tampons into the station. She was told she would have to change tampons in her car. Smith also was harassed regularly through vulgar references such as “split tail” or explicit comments like “I’d like to bend you over.” She was terminated shortly after complaining to the Fire Chief and the City HR Director about the harassment she experienced at the fire department.
In her lawsuit, Smith sued the City, claiming that the fire department was a hostile work environment towards women and that she faced disparate treatment based on her gender. She further claimed that any other reason that the fire department might give for her termination was merely pretext for the officers’ true discriminatory intent.
The City argued that the evidence was insufficient to support either the jury’s findings that the work environment was hostile towards women or that Smith was fired in retaliation for her complaints about discrimination. It asserted that many of Smith’s complaints about hostile conduct were not gender-specific and that any conduct that was gender-specific was neither severe nor pervasive. The City also argued that Smith’s termination could not be in retaliation to her complaints because no evidence attributed a retaliatory motive to the two superiors who actually terminated her.
Addressing the City’s argument about the gender-specificity of the abusive conduct, the Court considered the abusive conduct that Smith faced cumulatively. The Court expressed its displeasure with the City’s argument:
Smith’s final months of service culminated in actions that the jury could have found objectively humiliating and degrading, particularly when viewed cumulatively with the general atmosphere of hostility… According to Smith, male firefighters became more hostile at this time; the fire department instituted new, gender-specific rules, prohibiting so-called “girl magazines” and tampons, a basic feminine-hygiene item… Smith informed [the] HR Director… that sexual-harassment training was needed but was told, essentially, that it was not worth the cost… Smith also spoke directly with City Manager Hagood about whether she could bring tampons to work… That she even had to ask such a question about a basic feminine-hygiene item is embarrassing and outrageous.
The Court also rejected the City’s argument that no retaliatory motive could be attributed to the two individuals who actually fired Smith. The Court explained that establishing a claim for retaliation did not require that the individual responsible for an ultimate decision harbor a retaliatory motive. Instead, where an adverse employment action is retaliatory depends on whether the action would not have occurred in the absence of a protected activity. Addressing Smith’s situation, the Court said:
Early in her tenure, Smith complained… about some initial difficult incidents…and [a superior] warned Smith that filing a claim for a hostile work environment would make her life much more difficult going forward. Put simply, [the] Deputy Chief effectively cautioned Smith that engaging in protected activity would result in retaliation against her. And it did… Smith filed a grievance with her union… She was Written up based on the content of her grievance, and then soon after received notice that she was being investigated… These investigations, by the City’s own admission, eventually led to Smith’s suspension and termination.
Consequently, the Court affirmed the jury’s the significant award against the City for allowing the fire department to become a hostile work environment towards females and terminating Smith in retaliation for her complaints about discrimination.
The Court decided this case correctly. This case had a particularly egregious set of facts. There is no question that the pervasiveness of the harassment coupled with the fact that it also involved humiliating circumstances likely persuaded the trial court and ultimately the appeals court. Moreover, timing in retaliation cases is key. Here, Smith reported the harassment in December, 2007, and by mid-January 2008, she was indefinitely suspended without pay. Less than a month passed from the time of her complaint to the time she suffered an adverse employment action. This was certainly compelling evidence to prove the causal nexus between her complaint of sexual harassment and her suspension. The HR director’s blasé response to Smith’s sexual harassment training recommendation further demonstrated the City’s overall attitude about the unlawful workplace harassment, and also likely swayed the Court to uphold the jury verdict in this case.
