Colorful Decision Upholds Discrimination Verdict For Firefighter

From the opening words of a federal court’s opinion in Firefighter Melissa Smith’s sexual harassment and discrimination lawsuit against the City of New Smyrna Beach, Florida, one realizes that the Court’s opinion is going to be unlike most “just the facts, ma’am” judicial decisions. Judge Gregory Presnell began his opinion writing: “Discrimination in the workplace anywhere in the United States is inconsistent with the concept of ordered liberty as first espoused by Thomas Jefferson in July of 1776. Title VII is central to the federal policy of prohibiting discrimination in the Nation’s workplaces and in all sectors of economic endeavor. As we continue to strive toward ‘a more perfect union,’ first responders like the men and women of the nation’s fire and rescue services have become iconic symbols for America. They are rightly seen as modern day heroes and heroines who put service and the interests of others ahead of their own needs and personal safety.”

Smith worked at the Fire Department from 2003 to 2008. During her interview for the job, Fire Chief Tim Hawver told Smith, “I only really hire men that hunt, fish, or camp. But I heard you’re a pretty good ball player.” He also discussed her role as a single mother.

When Smith began work at the Fire Department, she discovered that her Standard Operating Procedures manual had been covered with a Cosmopolitan magazine cover. Battalion Chief Michael Coats told Smith that he did not believe that women should be in the fire service and that it was Smith’s responsibility to prove otherwise. Coats also said that women could not “pull their own weight or do the job of a man.” Smith told Deputy Chief David McAllister about her interactions with Coats, and McAllister told her, “Well, it sounds like you have a hostile working environment. You need to file that.” McAllister also told her that if she did file, it would create a lot of trouble for her.

Smith was disciplined differently from her male counterparts. For example, she was written up for leaving the fire station to eat lunch before a meeting when the male firefighter who ate lunch with her was not written up. Men frequently used the computer for non-work-related activities (including searching for pornography) and were not written up, but Smith was written up for using MySpace. Smith was also written up for improperly washing a truck that was not dirty.

Things got worse over time. Smith was suspended for using profanity. A lieutenant told her that she could not have “girly” magazines such as Glamour and Cosmopolitan in the fire station and that she was not permitted to bring tampons into the fire station but would have to change her tampons in her car. On January 16, 2008, Smith was on duty when every time she entered a room, the others would leave and slam the door. Smith was so distraught that she asked if she could go home early because she could not properly carry out her duties given her emotional state. Her lieutenant said, “Sure, after you scrub the toilets and make sure you get all the urine off the wall or you’re going to do it again.” Smith then proceeded to clean the toilets in tears while the other firemen on duty stood and watched her.

When Smith was eventually fired, she brought a sexual harassment and sexual discrimination lawsuit against the City. After a six-day trial, a jury returned a verdict in favor of Smith on all of her claims, and awarded her compensatory damages in the amounts of $244,000 for back pay and $200,000 for pain and suffering. The Court also granted Smith’s post-verdict request for reinstatement and ordered antidiscrimination training. The City then challenged the verdict, arguing there was inadequate evidence to support a finding of discrimination or harassment.

The Court found that “a reasonable jury could have concluded that the unwelcome conduct directed at Smith intolerably altered her working environment. Here, the unwelcome conduct took place over the course of nearly five years. However, it escalated beginning in August 2007 when Smith became pregnant. At that point, Smith was denied overtime and moved to a station where she could not work out of class while unqualified men worked out of class in her place. She was written up, investigated, and ultimately disciplined for incidents for which men in the Fire Department have never been disciplined.

“The unwelcome conduct was both humiliating and directed at undermining Smith’s competence to perform her duties. The discrimination did not just involve gender-derogatory comments and sexual harassment, though there were a number of those incidents. It was also predicated on humiliating ad hoc rules such as not being allowed to bring tampons into her workplace and having to change her tampons in her car, and requiring Smith to scrub toilets. From the time that Smith arrived at the Fire Department and was blatantly told that women did not belong in the fire service, to the end of her tenure when a lieutenant openly refused to work with her because of her gender, her competence and ability to perform as a firefighter were constantly undermined. This culminated in a series of escalating investigations and inequitable disciplinary actions, which the jury reasonably could have inferred were based on false pretenses.

“Keeping in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created thereby may exceed the sum of the individual episodes, this Court finds that the jury had sufficient evidence to conclude that the hostile work environment was sufficiently severe or pervasive. Smith subjectively understood the terms and conditions of her employment to have been altered, as evidenced by her emotional breakdown and panic attacks, and a reasonable person in Smith’s position would have felt the same way. Thus, the Court cannot conclude as a matter of law that no reasonable jury could view Smith’s treatment as severe or pervasive enough to alter the terms and conditions of her employment.”

Smith v. City of New Smyrna Beach, 2013 WL 5230659 (M.D. Fla. 2013).