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Court Says City Treated Female Firefighter Hostilely Due to Supervisors' Sex-Based Bias

Friday, December 28, 2012
Smith v. New Smyrna Beach, M.D. Fla., No. 6:11-cv-01110, 12/27/12

Key Holding:Female firefighter/paramedic raised issue of fact she was subjected to sex-based discrimination and harassment because city disciplined her differently than male co-workers, told her women belong “in the kitchen.”

Key Takeaway:Statements suggesting sex-based hostility or sexual desire can establish an objectively hostile work environment under Title VII.

By Anne A. Marchessault

A female firefighter/paramedic can advance her sex discrimination claims because she was singled out repeatedly for her sex and subjected to harassing conduct by both co-workers and supervisors, the U.S. District Court for the Middle District of Florida ruled Dec. 27 (Smith v. New Smyrna Beach, M.D. Fla., No. 6:11-cv-01110, 12/27/12).

Melissa Smith worked as a firefighter for the city of New Smyrna Beach, Fla., from 2003 to 2008. She alleged that from the very outset of her employment there, she was subjected to sex-based discrimination and harassment, and that the city suspended her and ultimately terminated her employment in retaliation for complaining about such treatment.

Denying summary judgment to the city, the court found that Smith stated sufficiently her sex discrimination claims under Title VII of the 1964 Civil Rights Act.

Judge Roy B. Dalton wrote that “the kind of degradation Plaintiff experienced, especially the comments that women do not belong in the fire service, implying that women cannot perform in the role as a firefighter, could be seen to unreasonably affect one's work performance.”


Profanity Likely Pretext for Penalty


The court found that the city punished Smith more severely than similarly situated male employees who engaged in the same conduct.

On Oct. 11, 2007, Smith was suspended for allegedly cursing at the fire department administration. Lieutenant Tyrone Ofide reported that Smith told a co-worker the department “can kiss my ass” when she was informed of a new policy.

Smith alleged that Ofide and other male department employees cursed on numerous occasions, and that no one else had been disciplined for profanity. She also claimed that she told the co-worker individually--and not the administration itself--to “kiss [her] ass” because he was being “verbally abusive.”

“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,” Dalton wrote.

The court found that Smith presented evidence that the city's articulated reason for the discipline--that her use of profanity was a violation of the department's personnel policies and procedures--was a pretext for discrimination.

According to Smith, two shifts prior to her “kiss my ass” remark, she said “shit” when she dropped her sandwich on the floor and Ofide responded that “a lady should not talk like that.”

“This gender-driven comment, paired with statements that cursing was prevalent in the Fire Department yet only Plaintiff was disciplined for profanity, could lead a reasonable factfinder to infer that Plaintiff's suspension was discriminatory and that the City's explanation was pretextual,” Dalton concluded.

The court thus advanced Smith's Title VII sex discrimination claim based on her suspension.


Statements Suggestive, Sex-Based


Smith also can proceed on her Title VII claim for a sex-based hostile work environment, the court decided.

To prove a hostile work claim, it said, Smith needed to allege severe or pervasive conduct that altered the terms and conditions of her employment or created an abusive working environment.

The court found that Smith alleged conduct that demonstrated a general hostility to the presence of women at the department: co-workers covered her operating procedures book with cutout pieces of a photocopied Cosmopolitan magazine; Chief Michael Coats ignored her and stated that “women should not be in the fire service”; and Chief David McCallister told her she should get pregnant so she could be his secretary.

Smith was also subjected to sex-based harassment, the court decided, when Lt. Brian Grace told her she would be suspended if she ever brought tampons to work, and Lieutenant Paul Owens said he did not want to work with Smith and another female firefighter because he was not “babysitting two girls.”

Smith also showed that she experienced conduct motivated by sexual desire, the court said. Smith's co-worker James Roberts told her she was beautiful, said that he wanted to “bend [her] over,” made comments about her attire, and sent her a picture of his penis.

Furthermore, the court found that the alleged conduct was both subjectively and objectively hostile.

Smith personally felt that she was subjected to a hostile work environment, the court found, because she became physically ill and emotionally unstable because of co-workers' conduct. She also attributed a miscarriage to stress caused by the harassment.

The court decided that the behavior was objectively hostile as well because it occurred on numerous occasions from a number of people at the department.

“Under the physically threatening or humiliating prong,” Dalton wrote, “while the conduct may not have been physically threatening, certain acts, such as having her book covered in pieces of Cosmopolitan magazine … [and] being told she cannot bring tampons to work … are arguably humiliating.”

Finding that an issue of fact existed as to whether Title VII hostile work liability could be imposed on the city, the court denied its summary judgment motion.


Suspended Shortly After Complaints


The court advanced Smith's Title VII retaliation claim because it found she could establish a causal connection between her suspension and complaints of sex discrimination.

Smith said that sometime between Oct. 21, 2007, and Jan. 19, 2008, she complained to numerous city personnel and management about the sexual harassment she allegedly experienced. The department suspended her indefinitely Jan. 18, 2008, and ultimately terminated her employment.

“Because there was an interval of less than three months between the protected activity and suspension, Plaintiff establishes a causal connection,” Dalton said.

Karen C. Amlong, William R. Amlong, Jennifer Daley, and Michelle Parker of Amlong & Amlong in Fort Lauderdale, Fla., represented Smith. Donna N. M. Hansen and Douglas T. Noah of Dean, Ringers, Morgan & Lawton in Orlando, Fla., represented the city.

By Anne A. Marchessault


Text of the opinion is available at /uploadedFiles/Content/News/Legal_and_Business/Bloomberg_Law/Legal_Reports/Smith-Ruling2(1).pdf.

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