Franchina v. Providence Fire Department ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2401
LORI FRANCHINA,
Plaintiff, Appellee,
v.
CITY OF PROVIDENCE,
Defendant, Appellant,
PROVIDENCE FIRE DEPARTMENT;
PROVIDENCE FIREFIGHTERS LOCAL 799,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Kevin F. McHugh, Senior Assistant City Solicitor, with whom
Jeffrey Dana, City Solicitor, and Kathryn M. Sabatini, Associate
City Solicitor, were on brief, for appellant.
John Martin, with whom Benjamin H. Duggan, Kathy Jo Cook, and
KJC Law Firm, LLC were on brief, for appellee.
Mary L. Bonauto and Allison Wright, with GLBTQ Legal Advocates
& Defenders, Ria Tabacco, with American Civil Liberties Union,
Gregory R. Nevins, with Lambda Legal Defense & Education Fund,
Inc., Shannon P. Minter and Christopher Stoll, with National Center
for Lesbian Rights, on brief for American Civil Liberties Union,
American Civil Liberties Union of Rhode Island, GLBTQ Legal
Advocates & Defenders, Lambda Legal Defense & Education Fund, Inc.
and National Center for Lesbian Rights, amici curiae.
January 25, 2018
THOMPSON, Circuit Judge. Sticks and stones may break
some bones, but harassment can hurt forever. "Cunt," "bitch,"
"lesbo": all are but a smattering of the vile verbal assaults the
plaintiff in this gender discrimination case, Lori Franchina, a
former lieutenant firefighter, was regularly subjected to by
members of the Providence Fire Department ("the Department"). She
was also spit on, shoved, and--in one particularly horrifying
incident--had the blood and brain matter of a suicide-attempt
victim flung at her by a member of her own team. After an eight-
day trial, a jury in the District of Rhode Island concluded that
Franchina had been discriminated against on the basis of her gender
and retaliated against when she dared protest her treatment. For
her ordeal, she was awarded front pay1 as well as emotional
damages.2 The City of Providence ("the City") now appeals, making
numerous arguments as to why the jury verdict should be set aside
or, in the alternative, why the judge's front pay award should be
1 Front pay awards are essentially awards of future "damages
for wages from the date of judgment to some specified date in the
future." Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 953 (1st
Cir. 1995). They serve to "mak[e] victims of discrimination whole
in cases where the factfinder can reasonably predict that the
plaintiff has no reasonable prospect of obtaining comparable
alternative employment." Powers v. Grinnell Corp., 915 F.2d 34,
42–43 (1st Cir. 1990) (internal quotation marks omitted). A lot
more on that later.
2 The jury also awarded punitive damages but those were later
eliminated.
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stricken. Because we decline to put out flames of the Department's
own making, we affirm.
Getting Our Factual Bearings
We begin, as we nearly always do, by outlining how this
case came to be. Though the City attempts to trivialize the abuse
inflicted upon Franchina while working for the Department by giving
it short shrift in its brief, we decline to be as pithy in reciting
Franchina's plight in order to give context both to the jury's and
the district court's ultimate determinations.3 In outlining the
background in this case, we keep in mind that our recounting of
the facts is done "in the light most favorable to the verdict,
deferring 'to the jury's discernible resolution of disputed
factual issues.'" Ciolino v. Gikas, 861 F.3d 296, 299 (1st Cir.
2017) (quoting Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir.
2010)).
Franchina testified for three days and recalled the
following for the jury. In or about 2002, Franchina was assigned
to the North Main Street Fire Station in Providence, Rhode Island.
Up until 2006, she experienced neither discrimination nor
harassment by members of the Department. In fact, in her lengthy
testimony, Franchina recounted numerous kind-hearted moments
3 Indeed, doing so is especially necessary here where the
district judge, in his discretion, imposed the equitable remedy of
front pay.
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during this timeframe where she felt comradery with her colleagues.
She explained, for example, that at the beginning of her career--
as a young female among a workforce consisting primarily of males-
-she felt that some members of the Department took her under their
wings and shielded her from individuals who sometimes got too drunk
or unruly at work events.
Far from worrying about discrimination, Franchina
testified that some of her biggest concerns during her early years
had to do with Department leadership wanting to promote her too
quickly. That her superiors wanted to promote Franchina is
unsurprising given her commendable professional record. She was
one of only eighty applicants accepted to the Providence
Firefighter Academy out of 2,300 who applied her year and, once
there, she graduated tenth in her class. Throughout her career
her superiors noted that she "did her job . . . the way we expected
it to be done" and effused that she was "on her game and knows her
stuff." Franchina's Chief also regularly received compliments
about her performance. Franchina, however, worried that rising up
the ranks too quickly could cause resentment among more senior
firefighters and testified that she actively attempted to keep
leadership from assigning her to officer roles at the beginning.
Nonetheless, Franchina's superiors ultimately ordered that she be
promoted from Rescue Technician to Acting Rescue Lieutenant to,
eventually, Rescue Lieutenant.
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Franchina's woes began in or about 2006 when she was
assigned to work a shift with Andre Ferro ("Ferro"), a firefighter
with a history of sexually harassing female colleagues in the
Department.4 During that shift, Franchina and Ferro were assigned
to the same rescue vehicle, with Franchina serving as an acting
rescue lieutenant, and Ferro assigned to be her rescue tech
chauffeur. That is to say, Ferro was responsible for driving the
rescue vehicle and Franchina served as his superior. Franchina
and Ferro had never worked with one another prior to this point,
though Franchina was aware of Ferro's dubious reputation with women
and was therefore apprehensive about having to spend the shift
with him.
Ferro's notoriety was on display within moments of
Franchina meeting him. After arriving at the station for her shift
and while pouring herself a cup of coffee, Franchina was
immediately approached by Ferro who, without missing a beat, asked
4This Court is familiar with Ferro. Over fifteen years ago,
we encountered him in a separate Title VII action. In that case,
the City was found to be liable under Title VII for, among other
things, comments Ferro made toward the plaintiff, another female
firefighter named Julia O'Rourke. Ferro commented on her breast
size (which he referred to as "stacked") and suggested that if she
had sex with him she would "never want another man." O'Rourke v.
City of Providence, 235 F.3d 713, 718 (1st Cir. 2001). Ferro also
forced O'Rourke to listen to his musings on different sexual
positions he enjoyed and his love of oral sex, played videos of
himself having sex with his girlfriend in front of her, and
discussed his sexual prowess and stamina. Id. Nonetheless, Ferro
maintained his employment with the Department in spite of the
O'Rourke outcome.
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if she was a lesbian. To repeat, this was their very first
encounter. After Franchina retorted that it was none of his
business, Ferro followed up with the statement, "I don't normally
like to work with women; but, you know, we like the same thing, so
I think we're going to get along." Franchina testified she was
appalled by his comments and as his supervisor, instructed him not
to say such things. She then immediately left for her office to
escape him. Soon thereafter, however, an emergency call came in
and Franchina and Ferro were jointly dispatched to respond in their
rescue vehicle.
During the emergency run Ferro continued with his
inappropriate prattle. He asked, for example, if Franchina wanted
to have children and quickly followed up with, "I could help you
with that," implying that he wanted to impregnate her. So
incessant was the unprofessional chatter that Franchina was forced
to tell Ferro on multiple occasions to stop talking because she
was having difficulty hearing the dispatcher's instructions.
Franchina further testified that she refused to engage with Ferro's
uncomfortable banter, instead riding in silence or telling him to
be quiet as needed.
During the same shift, Franchina and Ferro were also
dispatched on a run that took them to the Rhode Island Hospital.
When they arrived, two other rescue vehicles were on the scene,
meaning that a total of six firefighters were present (two in each
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vehicle). The firefighters entered the hospital in order to pass
along reports about their respective transports (patients that had
been transported to the hospital) and, after doing so, Franchina
and the other firefighters (with the exception of Ferro) waited in
a holding area and chatted with one another. At some point Ferro
approached the group and began rubbing his nipples in a circular
fashion, leapt up in the air, and screamed at Franchina, "My
lesbian lover! How are you doing?" Nurses, doctors, patients,
and patients' families were all present in the holding room to
witness this display. Franchina testified that she was horrified
and felt belittled. The other firefighters present were similarly
appalled.
Later that evening, after returning back to the station,
Franchina went to her personal quarters and began changing out of
her uniform. Though she had closed the door, it was not locked.
A rule, however, existed in the station requiring that if an
officer's door was closed, anyone seeking permission to enter had
to first knock three times and wait for the officer to respond.
Nevertheless, without knocking, and while Franchina was changing,
Ferro opened the door to her room wearing what appeared to be only
his boxers, a Providence Fire Department shirt, and socks.
Franchina, who was in her undergarments, quickly grabbed a sheet
off her bed to cover herself. When Franchina asked Ferro to leave,
he refused. She asked a second time, and he refused yet again.
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Only after telling him to "get the fuck out" of the room did Ferro
finally depart.
Franchina never reported this repulsive behavior. She
didn't have to. Following the nipple-rubbing incident at the
hospital, Chief Curt Varone, a high-level officer with authority
over all of the stations within the Department, called her directly
because he had "gotten wind" of what had transpired. During the
phone call, Chief Varone asked Franchina to recount the details of
Ferro's actions. Based on Franchina's explanation, Chief Varone
filed a written complaint against Ferro charging him with sexual
harassment and exposing him to employment termination.5 A hearing
was scheduled to determine whether Ferro would retain his job.
Once word spread about Ferro's disciplinary proceeding,
firefighters in the North Main Street station began to treat
Franchina with contempt and disdain. Firefighter Andy McDougal,
a subordinate to Franchina, approached her in the kitchen several
weeks before Ferro's hearing and, in front of numerous other
firefighters, yelled at her and asked, "What are you trying to get
him fucking fired?" Although Captain Alan Horton, the top
supervisor in the North Main Street station, was present during
this exchange, he neither reprimanded McDougal nor reported the
incident to Chief Varone.
5Ferro was, in fact, ultimately fired in 2007, but, again,
was allowed to subsequently return to the Department in 2008.
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The day following McDougal's kitchen outburst, McDougal-
-who was responsible for cooking at the station--also stated to
Captain Horton that he would no longer prepare meals for Franchina.
Captain Horton, however, overrode McDougal, which angered him.
According to Franchina, from that point forward, the meals McDougal
prepared for her made her severely ill. Following several bouts
of ensuing illness, Franchina, who never had a history of
gastrointestinal problems, decided to swap her meal with that of
a different rescue tech. After that tech ate Franchina's meal,
he, too, became ill and had to go home sick.6
Starting in 2006, members of the North Main Street
station also began to refer to Franchina using gendered epithets.
For example, she was referred to openly as "Frangina," a
combination of her last name and the word "vagina," which (as
Franchina testified she had seen on the popular website
UrbanDictionary.com) is also a slang term used to describe an
unshaved vagina. See Frangina, Urban Dictionary,
https://www.urbandictionary.com/define.php?term=Frangina (last
visited Jan. 25, 2017). Additionally, Franchina explained she
heard male firefighters in the station refer to her as a "bitch"
with great regularity. "Who does that fucking bitch think she
is?"; "I'm not going to help that fucking bitch"; "That bitch can
6
The record does not tell us how this meal preparation debacle
was ever resolved.
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carry her own stretcher" were common derogatory remarks hurled at
Franchina.
The men of the North Main Street station did not limit
their harassment of Franchina to verbal attacks. Rather, at one
point they began utilizing a group white board in one of the common
areas to further taunt her. Twenty-one total insults were written
on the board including: "Be careful how you talk to her, she'll
bark at you," "You get what you get, bitch," and "Frangina leads
Team Lesbo to victory." Franchina testified that she personally
heard Captain Peter Spedutti, a thirty-year veteran of the
Department, point at the white board and say, "I'll show her."
She also later witnessed him boisterously brag to a younger
firefighter about what was written on the white board. The list
remained up for over fourteen hours. Although Franchina complained
to Chief Michael Crawford, a superior officer in the Department,
about what was being written about her on the board, the
perpetrators were not reprimanded.
Based on trial testimony, Franchina also suggested that
the actions of the North Main Street station put the lives of the
people of Providence at risk, including, in one instance, that of
an unborn child and the child's mother. About a month prior to
Franchina leaving the North Main Street station in 2007, Franchina
was dispatched to a pre-natal facility in response to a pregnant
mother experiencing fetal distress. In order to get oxygen to
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both the mother and baby, a device known as a non-rebreather was
needed because the fetal heartrate was severely elevated.
Firefighter McDougal, who had already been avoiding eye contact
with Franchina and who did not want to work with her (or, remember,
cook for her), was also on the scene. Though Franchina tasked
McDougal with securing the re-breather around the patient’s nose
and mouth, he continued to let the device slip off, thus preventing
oxygen from properly being transported to the patient. Franchina
had to order him to get away from the patient so she could properly
secure the device herself. Such instances of insubordination with
McDougal, Franchina recalled, were common and intentional.
Franchina was eventually transferred in 2007 from the
North Main Street station to the Branch Avenue station and,
initially, her experiences at Branch Avenue were good. Things,
however, went south and her colleagues at that station began to
display similar behaviors to those at the North Main Street
station. Franchina testified that the beginning of the bad times
seemed to coincide with call-back shifts in which McDougal was
assigned to work in the Branch Avenue station.7 During one call-
back, McDougal walked into the kitchen where members of the Branch
Avenue station were convening (including Franchina) and exclaimed
7 Call-back shifts are additional overtime shifts that
firefighters in the Department may pick up for additional
compensation.
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loudly, "affirmative action's killing this fucking job." An
officer who was present did not reprimand him for this outburst.
On another occasion, during a shift change, he purposely pushed
Franchina into a wall when nobody was looking. Franchina
complained about the incident to Chief Al Horton8 but nothing was
done.
Franchina explained at trial that following McDougal's
call-backs at the Branch Avenue station, she regularly began to be
called "bitch," "cunt," and "Frangina." She also testified that
a subordinate flicked her Lieutenant's insignia on her collar and
whispered, "I will never take a fucking order from you."
Franchina also testified to the inappropriate behavior
that Branch Avenue station firefighters would exhibit on emergency
runs to spite her. In one instance, a firefighter purposely failed
to put a wheelchair on one of Franchina's rescue vehicles when she
was responding to a patient with cerebral palsy who was wheel-
chair dependent for transportation. Franchina reported the
incident to Chief Horton but the firefighter was not reprimanded.
In another run, Franchina and a number of Branch Avenue
firefighters responded to a car accident involving two individuals
who were severely injured. One of them had been decapped (meaning
a portion of his scalp had been severed). Franchina was able to
8
While we referred to Horton as Captain Horton previously,
by this point he had been promoted to Chief.
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get this victim onto a stretcher and then into a rescue vehicle
but, while treating the victim, realized that none of the
firefighters at the scene were behind the driver’s wheel to
transport the victim to the hospital. After requesting a driver
numerous times from the firefighters on scene, Franchina was
addressed by Lieutenant Anthony Lancellotti who, in a sour tone,
barked "You'll get a driver when you get your driver." The car
crash victim later died.
During another run, Franchina and several Branch Avenue
firefighters--including Lieutenant Robert Jackson, Rescue
Technician Paul Tang, and Firefighter Sean McGarty--responded to
a suicide-attempt victim who had shot himself in the head.
Franchina was the officer in charge at the scene. Franchina
ordered Jackson to assist in putting the body of the victim onto
a stair chair so that he could be carried downstairs to the rescue
vehicle. Jackson, however, refused to comply, folded his arms,
and stated, "That's a lot of blood." McGarty was also
insubordinate, and refused to comply with Franchina's directive to
move the victim to the chair. McGarty quipped, "if he wanted to
kill himself, maybe we should just let him." Franchina ordered
the men at least four times to move the victim onto the chair.
None would comply. Tang, in fact, took the chair and slammed it
open, but would not help put the victim in it. Eventually
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Franchina had to find a police officer to assist her since her own
men remained insubordinate.
Once the suicide-attempt victim was in the rescue
vehicle, Tang performed CPR on the victim. The gloves Tang wore
became severely encrusted with blood and pieces of brain matter.
After Tang completed CPR, he sat upright with his hands at
Franchina's eye level. He then removed the gloves, purposely
snapping them off in such a way as to fling the bloody debris onto
Franchina's face, nose, hair, neck, eyes, ears, and mouth.
Immediately following this incident (and as a result of
it), Franchina went out on disability leave for six months' time.
She also confidentially reported the incident to Chief Crawford,
and though Crawford contacted the City's Equal Employment
Opportunity ("EEO") Officer, the complaint form he completed noted
that he believed Franchina was "blowing [the incident] out of
proportion." The City's EEO officer, however, concluded
differently:
there appears to be AMPLE merit to [Franchina's] claim
of MULTIPLE & REPEATED violations of [Providence Fire
Department] RULES AND REGULATIONS.
Even seems plausible that the pervasiveness of this
behavior creates a HOSTILE WORK ENVIRONMENT for her.
Also seems clear that [the Department] has FAILED to
STOP the behavior.
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Amended Joint App'x at 1046 (emphasis in original). The EEO
officer testified at trial that she was unaware if anyone was ever
ultimately disciplined for their actions toward Franchina.
Following her return to the Department after the six-
month leave, the abuse from her colleagues continued. At a
December 2009 Christmas party in the Firefighter's Union Hall,
Franchina was berated by McGarty (we will call this event the
"Union Hall Incident"). He screamed obscenities at her, spit as
he yelled at her, and, at a whopping 6'6", attempted to use his
body to block her from leaving the hall so he could continue his
bellowing. He called her a "fucking doughnut," a "fucking zero,"
and a "fucking loser." Two senior officers, Lieutenant Elliot
Murphy and Lieutenant Robert Jackson were both about fifteen to
twenty feet away from where this harassment was occurring, yet
said nothing. In fact, when Franchina, seeking assistance, called
out to Lieutenant Jackson--McGarty's direct supervisor--Jackson
responded, "I'm not your fucking baby-sitter" and allowed
McGarty's tormenting to continue.
In response to this incident, Franchina sought first a
temporary restraining order ("TRO") against McGarty, which a Rhode
Island state-court judge granted, and then a preliminary
injunction, which was also granted. The injunction specifically
restrained McGarty from "interfering with, molesting, harassing,
annoying or contacting [Franchina] in any manner, directly or
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indirectly." The only exception to this injunctive relief was a
carve-out allowing the two to interact with one another "on an
emergency call, that is, specifically when [McGarty] is doing a
call on behalf of the fire department and he is on the scene."
Apart from that narrow exception, the superior court left it up to
the Department to prevent Franchina and McGarty from encountering
one another. Chief Michael Dillon, Assistant Chief of Operations,
subsequently issued an order barring McGarty from working any call-
backs in stations that had a rescue unit, thus ensuring that
Franchina (as a rescue lieutenant) and McGarty would never
interact. Nonetheless, Chief Scott Mello, who was in charge of
scheduling, testified that he believed such an order was impossible
to enforce and, moreover, that he viewed the order as "more of a
suggestion." No surprise, then, that the order was not actually
followed and McGarty violated it at least four separate times.
Franchina's final day as an active-duty rescue
lieutenant was October 28, 2010. That day, she arrived at the
Branch Avenue Station only to discover that McGarty was on duty
working there. McGarty and various other firefighters, including
Chief Mello (the scheduler discussed above), were on the second-
floor landing of the station, talking negatively about Franchina
in a raucous manner. Franchina heard them making fun of her and
loudly exclaiming, "Do you know who was in the fucking station
today? That bitch was in the station." Franchina confronted the
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group and then reported the incident to Chief Horton. Again, no
disciplinary action was ever taken against anyone as a result of
this incident.
The constant ridicule and harassment Franchina
experienced caused her to be placed on injured-on-duty ("IOD")
status. Still, in order to remain an active member of the
Department, Franchina was required to perform various
administrative tasks at the Branch Avenue Station. She testified
that she performed these tasks "weekly" for a "good portion" of
2011. The abuse, however, did not stop even when Franchina was
classified as IOD. While at the station, she would hear
firefighters make disparaging comments about her such as "[t]he
bitch is in the house," and "F that bitch . . . thank God she's
not here anymore."
One of the Department chiefs eventually requested that
Franchina no longer come into the station. Thereafter, Franchina
remained employed with IOD status (for a total of three more
years), but she no longer physically reported in. On November 30,
2011, Franchina filed a Charge of Discrimination with the Rhode
Island Commission for Human Rights ("RICHR") and with the Equal
Employment Opportunity Commission ("EEOC"). She officially
retired on disability on December 19, 2013, after being diagnosed
with severe post-traumatic stress resulting from the numerous
work-related incidents that occurred. She testified that she can
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never again work as a rescue lieutenant as a result of her
permanent disability, which the City does not contest. By the
time Franchina officially retired, she had submitted approximately
forty different written statements complaining of harassment,
discrimination, and retaliation to higher-ups in the Department.
At trial, numerous individuals besides Franchina
testified to the disparities and harassment faced by female
employees of the Department. Lieutenant Danielle Masse testified,
for example, that women were treated as "less competent" than men
and were "spoken to as if they have no authority." She also
testified that when women brought issues to the Department's chain
of command, leadership generally didn't take the complaints
seriously or deal with them in an appropriate way. In fact, she
stated that when a woman would voice a grievance, Department
leadership often turned the problem around and blamed the female
firefighter doing the complaining.
There was also testimony that female employees who dated
male firefighters were generally treated better than those who
were not intimately involved with their male colleagues. And Chief
Varone testified that there were men in the Department who openly
treated their female counterparts with contempt. Another
firefighter, Lieutenant Andrea Stuckus, explained at trial that
she herself was followed into the women's restroom by a drunk male
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firefighter who had to be physically removed by other male members
of the Department.
At the end of the trial the jury found in favor of
Franchina on both her gender-based hostile work environment
discrimination claim, as well as her retaliation claim. It also
awarded her punitive, emotional, and front pay damages. After
judgment was entered for Franchina, the City filed a motion for
judgment as a matter of law, a motion for a new trial, and, in the
alternative, a motion to amend the judgment (by striking the
punitive damages and front pay awards). After a hearing, the
district court denied the City's motion for judgment as a matter
of law and motion for a new trial. It did, however, strike the
punitive damages award after reasoning that 42 U.S.C. § 1981a(b)(1)
legally precluded a plaintiff like Franchina from recovering
punitive damages from a municipality like the City. Lastly, the
district judge denied the City's motion to amend the judgment by
striking the jury's front pay award. In doing so, the court stated
that it had independently determined, in its equitable discretion,
that front pay was an appropriate remedy and thus awarded the same
amount that the jury had previously determined was fair. An
amended judgment was then entered.
With this background in place, we now turn to the issues
presented on appeal, highlighting additional facts when needed to
put the claims into proper perspective.
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Analysis
The City appeals from the denial of its motion for
judgment as a matter of law, making numerous arguments as to why
the decision in this case should not stand. While the core issue
on appeal involves the merits of Franchina's sex-discrimination
claim, the City complains of other supposed reversible errors--
such as timeliness concerns and evidentiary issues--that we will
also address. We review the district court's denial of the motion
for judgment as a matter of law de novo. Parker v. Gerrish, 547
F.3d 1, 8 (1st Cir. 2008). In doing so, however, we do not
"evaluate the credibility of the witnesses or weigh the evidence."
Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 75 (1st Cir.
2006). We will reverse "only if reasonable persons could not have
reached the conclusion that the jury embraced." Negron-Rivera v.
Rivera-Claudio, 204 F.3d 287, 290 (1st Cir. 2000).
A. Title VII: A Primer
We begin with a brief introduction to Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.,
the anti-discrimination statute upon which Franchina's claims are
based. Under that statute, it is unlawful for an employer "to
discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment," 42
U.S.C. § 2000e–2(a)(1), or "to limit, segregate, or classify [her]
employees . . . in any way which would deprive or tend to deprive
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any individual of employment opportunities or otherwise adversely
affect [her] status as an employee," 42 U.S.C. § 2000e–2(a)(2),
based on a protected characteristic such as sex. The Supreme Court
has articulated that, pursuant to that language, plaintiffs may
establish a violation of Title VII by demonstrating that an
employer required them to work in a hostile or abusive environment.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (explaining
that "[t]he phrase 'terms, conditions, or privileges of
employment' evinces a congressional intent to strike at the entire
spectrum of disparate treatment of men and women in employment,
which includes requiring people to work in a discriminatorily
hostile or abusive environment") (internal quotation marks
omitted).
Title VII's anti-retaliation provision separately tells
us that it is unlawful "for an employer to discriminate against
any of his employees . . . because [the employee] has opposed any
practice made an unlawful employment practice by this
subchapter[.]" 42 U.S.C. § 2000e-3(a). Because, as we've
explained, the term "'oppose' . . . carries its ordinary meaning:
to resist or antagonize . . .; to contend against; to confront;
resist; withstand," Rodríguez-Vives v. P.R. Firefighters Corps of
P.R., 743 F.3d 278, 284 (1st Cir. 2014) (quoting Crawford v. Metro.
Gov't of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009)), we
have interpreted the provision as casting a very broad "protective
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cloak." See id. at 283-84. That is to say, not only is it unlawful
to retaliate against an employee for initiating formal legal
actions pursuant to Title VII, see, e.g., Mariani–Colón v. Dep't
of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 223 (1st Cir.
2007) (complaining to human resource department and EEOC), but it
is also unlawful for an employer to retaliate because an employee
merely complains to a supervisor about conduct constituting sex
discrimination. See, e.g., Tuli v. Brigham & Women's Hosp., 656
F.3d 33, 41–43 (1st Cir. 2011).9 Retaliation to informal
opposition of a discriminatory employment activity is, in sum,
sufficient to violate Title VII.
Franchina brought two claims under Title VII, asserting
(1) that she was subjected to a hostile work environment, and (2)
that she suffered retaliatory action for having reported sex-based
discrimination to her superiors. As we noted, she received a
favorable jury verdict on each of her claims in the district court.
On appeal, the City shines its spotlight solely on the hostile
work environment cause of action. In light of the City's focus,
9
Other examples of unlawful retaliation courts have found
under Title VII include retaliation against an employee who
involuntarily testified as a witness in a proceeding, see, e.g.,
Deravin v. Kerik, 335 F.3d 195, 204 (2d Cir. 2003), as well as
retaliation in response to an employee who aided a co-worker in
asserting her rights. See e.g., Eichman v. Ind. State Univ. Bd.
of Trs., 597 F.2d 1104, 1107 (7th Cir. 1979).
- 23 -
we linger not on the retaliation claim, giving our undivided
attention instead to the issue with which the City takes umbrage.
To succeed on a hostile work environment claim, six
elements must generally be established:
(1) that [the plaintiff] is a member of a protected
class; (2) that [she] was subjected to unwelcome sexual
harassment; (3) that the harassment was based upon sex;
(4) that the harassment was sufficiently severe or
pervasive so as to alter the conditions of [her]
employment and create an abusive work environment; (5)
that sexually objectionable conduct was both objectively
and subjectively offensive, such that a reasonable
person would find it hostile or abusive and that [s]he
in fact did perceive it to be so; and (6) that some basis
for employer liability has been demonstrated.
Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 27 (1st Cir.
2011).10 This standard, which "takes a middle path between making
actionable any conduct that is merely offensive and requiring the
conduct to cause a tangible psychological injury," Aponte-Rivera
v. DHL Sols. (USA), Inc., 650 F.3d 803, 808 (1st Cir. 2011)
(quoting Harris, 510 U.S. at 21 (1993)), demands that we
"distinguish between the ordinary, if occasionally unpleasant,
vicissitudes of the workplace and actual harassment." Noviello v.
City of Boston, 398 F.3d 76, 92 (1st Cir. 2005).
And determining whether alleged instances of offensive
conduct reach the requisite level of pervasiveness and/or severity
to constitute actual harassment is by no means a black-and-white
10It is the third element in this standard that is the primary
target of the City's appeal, which we will get into momentarily.
- 24 -
determination. Indeed, we have explained time and again that
"[t]here is no mathematically precise test that we employ to answer
this question." Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st Cir.
2013). We look, instead, to numerous factors (to which we assign
no particular determinative weight) in order to guide us in our
resolution of these difficult situations: severity of the
discriminatory conduct, its frequency, the extent to which the
behavior is physically threatening or humiliating as opposed to a
mere offensive utterance, and the extent to which it unreasonably
interferes with an employee's work performance. Id. Each hostile
work environment claim, then, is necessarily evaluated on a case-
by-case basis.
Title VII also requires that the plaintiff file charges
of discrimination within 180 days of the alleged act. 42 U.S.C.
§ 2000e-5(e)(1). However, this period extends to 300 days where
the plaintiff has "instituted proceedings with a State or local
agency with authority to grant or seek relief from such practice."
Id.; see also Velázquez-Pérez v. Developers Diversified Realty
Corp., 753 F.3d 265, 276 (1st Cir. 2014).
In fixing the applicable tolling time, we must keep in
mind a key distinction the Supreme Court has articulated between
the tolling of (1) discrete incidents of discrimination and (2)
hostile work environment claims. "Discrete acts such as
termination, failure to promote, denial of transfer, or refusal to
- 25 -
hire are easy to identify," Nat'l R.R. Passenger Grp. v. Morgan,
536 U.S. 101, 114 (2002), and, consequently, those "acts are not
actionable if time barred, even when they are related to acts
alleged in timely filed charges." Campbell v. BankBoston, N.A.,
327 F.3d 1, 11 (1st Cir. 2003) (citation omitted). Hostile work
environment claims, on the other hand, generally "do not 'turn on
single acts but on an aggregation of hostile acts extending over
a period of time.'" Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18
(1st Cir. 2002) (quoting Havercombe v. Dep't of Educ., 250 F.3d 1,
6 (1st Cir. 2001)).11 For this reason, an equitable exception to
the 300-day filing period is recognized under Title VII for the
"ongoing pattern[s] of discrimination," that are part and parcel
with hostile work environment claims. O'Rourke v. City of
Providence, 235 F.3d 713, 726 (1st Cir. 2001) (citations omitted);
see also Nat'l R.R. Passenger Corp., 536 U.S. at 122. The
continuing violation doctrine, in other words, allows plaintiffs
to proceed on a hostile work environment claim "so long as all
acts which constitute the claim are part of the same unlawful
employment practice and at least one act falls within the time
period." Nat'l R.R. Passenger Corp., 536 U.S. at 122 (emphasis
added). Thus, in determining liability in a hostile work
11
Of course, there are instances where a single incident can
be so severe that it alone satisfies the "severe or pervasive"
prong of a hostile work environment claim. See Gerald, 707 F.3d
at 18 (1st Cir. 2013).
- 26 -
environment claim, all "component acts" of the claim that occurred
outside of the limitations period may be considered. Tobin v.
Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009).
With that legal landscape in mind, we address the City's
various arguments, rejecting each one as we go along.
B. Timeliness
The City's first arrow in its effort to lampoon the
district court proceedings is its claim that Franchina failed to
present evidence establishing an instance of harassment falling
within the applicable statute of limitations under Title VII. The
City contends that it was entitled to judgment as a matter of law
on that issue and that the lower court erred in denying its motion.
Having reviewed the issue de novo, see Cigna Ins. Co. v. Oy
Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001), we are not
persuaded.
Both parties agree that Franchina filed her charge of
discrimination with the RICHR on November 30, 2011. As such,
Franchina extended her statute of limitations beyond the typical
180-day limit and we therefore look to whether Franchina filed
charges within 300 days of the alleged discrimination (i.e., on or
after February 3, 2011). See Velázquez-Pérez, 753 F.3d at 276.
The relevant inquiry here is whether Franchina anchored
her hostile work environment claim by proving that some instance
of harassment happened on or after February 3, 2011. See Nat'l R.
- 27 -
R. Passenger Corp., 536 U.S. at 117 (where a plaintiff proves "that
an act contributing to the claim occurs within the filing period,
the entire time period of the hostile environment may be considered
for the purposes of determining liability"). Here, Franchina
testified that she was subject to vulgar obscenities and harassment
on her weekly visits to the firehouse while she was out on
disability. She explicitly testified that these visits continued
for a "good portion" of 2011.
The City argues that because Franchina did not testify
when specifically in 2011 the harassment occurred, she did not
meet her burden of proving that some actionable conduct happened
on or after February 3, 2011. Franchina counters that a jury could
reasonably infer that a "good portion" of 2011 meant that Franchina
returned for more than the first month of 2011 and therefore on or
after February 3, 2011. We agree with Franchina.
We will reverse on appeal only if our review of the
record reveals that the evidence required "one conclusion, namely,
that the moving party was entitled to judgment." Travers v. Flight
Servs. & Sys., Inc., 808 F.3d 525, 531 (1st Cir. 2015) (quoting
Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st
Cir. 1999)). Here, in order for the City to prevail, it must prove
that the only reasonable conclusion one could draw from the
evidence is that Franchina stopped returning to the firehouse (and
therefore stopped experiencing harassment) before February 3,
- 28 -
2011. We do not see the evidence in such stark a light. Indeed,
Franchina's testimony that she returned to the firehouse for a
"good portion" of 2011 could certainly be understood to mean that
she returned past February 3, 2011 (and logic reasonably suggests
that the words "good portion" encompassed not merely the first
thirty-three days of the year). Although we agree with the
district court judge that more would have been better, we find the
testimony presented to be at least minimally sufficient. Viewing
the "cold pages of the record" leaves little room for second
guessing the district court's finding, Rodríquez v. Municipality
of San Juan, 659 F.3d 168, 175 (1st Cir. 2011), and the City fails
to provide us with a compelling reason to do so.
C. Evidentiary Disputes
Moving on, the City contends here as it did below that
the district court erred in its admission of certain evidence,
namely the allowance of testimony pertaining to the Union Hall
Incident and the admission of a transcript from McGarty's
preliminary injunction hearing that resulted from that incident.12
In particular, the City argues first that all evidence of the Union
Hall Incident was admitted in error because it is irrelevant to
12
The briefs refer to the hearing as a "TRO hearing," and
call the relevant transcript a "TRO transcript," but that is
incorrect. We take judicial notice that the hearing transcript in
the record is from the preliminary injunction proceeding. See
United States v. Bello, 194 F.3d 18, 22-24 (1st Cir. 1999).
- 29 -
workplace harassment. Second, it asserts that even if evidence of
the Union Hall Incident were relevant, the transcript of the
restraining order hearing was surely inadmissible hearsay. The
admission of both, the City continues, so tainted the fairness of
the trial by "engender[ing] a verdict based on sympathy, passion,
and emotion." These arguments do not hit the mark.
We review a district court's admission of evidence for
abuse of discretion, Baker v. Goldman, Sachs & Co., 771 F.3d 37,
57 (1st Cir. 2014), a standard which is necessarily deferential.
Shervin v. Partners Healthcare Sys. Inc., 804 F.3d 23, 44 (1st
Cir. 2015) ("[O]nly rarely--and in extraordinarily compelling
circumstances--will we, from the vista of a cold appellate record,
reverse a district court's" evidentiary ruling.). Even if a
challenger passes this high hurdle, we will not reverse so long as
"it is highly probable that the error did not affect the outcome
of the case." McDonough v. City of Quincy, 452 F.3d 8, 19-20 (1st
Cir. 2006).
1. The Incident as a Whole
The City's first objection is to the admission of the
evidence of the Union Hall Incident generally, which it lodges on
relevancy grounds. Specifically, it contends that the incident
occurred outside the workplace and is therefore irrelevant to
Franchina's workplace harassment claim. Franchina counters that
incidents outside the workplace involving her colleagues and
- 30 -
supervisors are relevant to establish the severity and/or
pervasiveness of her hostile work environment claim.
Making a relevancy-based argument, as the City does, is
a rather tough sell. For evidence to be relevant it "need only
move the inquiry forward to some degree" on a fact of consequence.
Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010)
(citation omitted); see also Fed. R. Evid. 401 (relevant evidence
has "any tendency to make a fact [that is of consequence] more or
less probable"). And relevancy is determined "in light of the
underlying substantive law." Bielunas, 621 F.3d at 76. In cases
dealing with Title VII, we have previously held that evidence of
non-workplace conduct is admissible "to help determine the
severity and pervasiveness of the hostility in the workplace."
Crowley v. L.L. Bean, Inc., 303 F.3d 387, 409 (1st Cir. 2002).
The City nonetheless seems to argue, without citation,
that non-workplace conduct cannot be admitted as relevant unless
the incident is directly tied to consequences suffered by the
complainant in the workplace. It maintains that as a result of
the Union Hall Incident Franchina suffered no material
consequences (i.e. reduction of pay, change in work schedule,
station relocation, or similar negative actions) at work and that,
to the contrary, it was McGarty who was subject to work-based
consequences given that his assignments had to be drastically
restricted after the injunction issued. We disagree with the
- 31 -
City's admissibility argument. First, we have never mandated that
evidence of non-workplace harassment have direct, formal workplace
consequences (such as those listed above) for it to be relevant.
And even if such an explicit connection were required, which it is
not, Franchina testified she did experience workplace
consequences, in the form of removal from the firehouse, following
the Union Hall Incident.
Second--and not to belabor the point--we have explained
that non-workplace incidences are admissible if they cast light on
the motivations, pervasiveness, and/or severity of the harassment.
See Crowley, 303 F.3d at 409; see also O'Rourke, 235 F.3d at 724,
727 (affirming a verdict in favor of a sexual harassment victim
who offered evidence of prank phone calls taking place outside the
workplace). Both McCarty, the alleged harasser in the Union Hall
Incident, and Lieutenant Jackson, one of the supervisors who failed
to intervene, were players in Franchina’s workplace harassment
claim as each had been insubordinate in a previous rescue attempt
episode. Just as testimony that a firefighter on duty refused to
cook for her or made Franchina sick helps to establish the
pervasiveness and severity of the hostility in her work
environment, so too does off-duty evidence demonstrating Franchina
was berated, spit at, and otherwise assaulted by a co-worker while
a supervising officer stood by. Therefore, the Union Hall Incident
was not isolated, non-work related conduct, but rather evidence
- 32 -
supporting the magnitude of the workplace harassment Franchina
endured; a permissible means. See Crowley, 303 F.3d at 409.
Because the City's relevancy argument cannot withstand
our scrutiny we turn next to the City's challenge to the
transcript's admissibility specifically.
2. The Preliminary Injunction Hearing Transcript
As noted above, after the Union Hall Incident Franchina
sought and then received injunctive relief against McGarty
following a multi-witness hearing before the Rhode Island Superior
Court. At Franchina's Title VII trial, the district court, over
the City's objection, admitted into evidence the hearing
transcript from the superior court proceeding. The City contends
the admission was erroneous because the transcript was
inadmissible hearsay. Franchina disagrees, arguing that the
transcript was not admitted to prove what happened at the Union
Hall, but rather for the non-hearsay purpose of demonstrating (as
the trial court explained in its jury instructions) "that
management-level employees of the City [ ] knew or should have
known of the harassment, and that those management-level employees
failed to implement prompt and appropriate remedial actions that
[we]re reasonably calculated to stop the harassment and remedy the
situation." We agree with Franchina.
Out-of-court statements are considered "nonhearsay" when
they are offered not for the truth of the matter but for some other
- 33 -
purpose. United States v. Murphy, 193 F.3d 1, 5 (1st Cir. 1999)
("So long as out-of-court statements are not offered for their
truth, they are not hearsay."). The transcript, then, was
admissible as non-hearsay if, as Franchina argues, it was offered
for the purpose of establishing that the City was, or should have
been, on notice of Franchina’s alleged workplace harassment. See
Kelley v. Airborne Freight Corp., 140 F.3d 335, 346 (1st Cir. 1998)
(hearsay rule does not bar out-of-court statement offered to prove
notice); Tuli, 656 F.3d at 41 (out-of-court statements were
permissibly introduced as non-hearsay because they "remained
relevant for purposes of showing notice to the [employer] and
toleration of a general climate of offensive remarks and
displays"). And the transcript did just that.
Here, multiple employees of the Fire Department
testified at the superior court hearing about the altercation
between McGarty and Franchina.13 Those who testified included not
just Franchina and McGarty, but also two higher-ups in the
13Lieutenant Murphy (who was testifying in support of
McGarty) noted on the record his awareness that during the Union
Hall Incident "an argument ensued, a heated discussion amongst
[Franchina and McGarty]." He also explained that while
firefighters generally "settle[d] their differences" in the Union
Hall (that is, they didn't bring their work problems home with
them and dealt with them amongst themselves), this incident was
the first time in his twenty-two years on the job that he could
remember "anything leaving the union hall." Lieutenant Jackson
(who was also testifying in support of McGarty) similarly explained
that an argument between Franchina and McGarty had occurred, though
he was unable to hear what it was about.
- 34 -
Department's leadership, Lieutenant Robert Jackson and Lieutenant
Elliot Murphy.14 Testimony from senior officers (i.e. those in
positions of power) concerning what happened at the union hall,
regardless of its truth, could be understood as lending credence
to the inference that the Department should have been on notice of
the hostile work environment with which Franchina contended. See
Forrest v. Brinker Int'l Payroll Co., LP, 511 F.3d 225, 231 (1st
Cir. 2007) (harassment open and known by management level employees
evidenced that the employer knew of the harassment). Moreover,
the transcript evidences a larger knowledge about the alleged
harassment among the employees of the Department. For example,
Lieutenant Murphy testified that he filed a report with the
Department about the Union Hall Incident and that he knew of the
previous alleged incident of insubordination between Franchina,
McGarty, and Lieutenant Jackson. And Lieutenant Jackson testified
that he had heard rumors that Franchina was filing a lawsuit
against the Department related to his alleged insubordination
during a rescue. Such evidence of widespread knowledge among
employees can be probative of an employer's notice and, therefore,
14 Firefighter Michael Evora also testified about the fact
that he witnessed the argument, but was unable to determine what
had caused it and did not hear what they were arguing over. He
did note, however, that he noticed Franchina trying to ask for
help from a senior officer during the incident.
- 35 -
was properly admitted for this purpose. Crowley, 303 F.3d at 402-
03 (evidence that managers, team leaders, and superiors were aware
of harassment evidenced that the employer knew or should have
known); White v. N.H. Dept. of Corr., 221 F.3d 254, 261 (1st Cir.
2000) (Title VII requires proving that the supervisors "knew or
should have known" of the workplace harassment but "failed to
implement prompt and appropriate corrective action").15
The events following the preliminary injunction hearing
further support the fact that leadership was on notice that the
hearing occurred and about what had transpired at the hearing.
Indeed, immediately following the superior court's grant of the
injunctive relief, Chief Michael Dillon, Assistant Chief of
Operations, issued an order barring McGarty from working any call-
15 In what appears to be part of its broader admissibility
argument, the City seems to tell us that admission of the
transcript was unduly prejudicial and should have been excluded.
We've held that when statements "potentially qualif[y] as both
hearsay and nonhearsay, the district court may admit it if it is
relevant, and if the probative value of its intended nonhearsay
use is not substantially outweighed by the risk of the jury
considering it for the truth of the matter asserted." United
States v. Colón-Díaz, 521 F.3d 29, 33 (1st Cir. 2008); see also
Fed. R. Evid. 403. Here, the City's contention that the
transcript's probative value is substantially outweighed by the
prejudicial effect is made in conclusory terms and without citation
or persuasive reasoning. We see no reason to make the City's
argument for it, and consider it waived. United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention
a possible argument in the most skeletal way, leaving the court to
do counsel's work, create the ossature for the argument, and put
flesh on its bones."). Additionally, we note that the City never
asked the court to issue a limiting instruction to the jury
regarding the extent to which the transcript could be considered.
- 36 -
backs with Franchina and Chief Scott Mello, a scheduler in the
Department, testified about receiving and attempting to implement
Mello's order. In light of all of this, we espy no abuse of
discretion on the part of the district court.
But, even if the district court erred by admitting
evidence of either the Union Hall Incident or the preliminary
injunction hearing transcript or both (and by no means do we
suggest it did), any such error would necessarily be harmless.
There was a plethora of other, independent evidence introduced at
trial that more than supports the verdict that Franchina was
discriminated against on the basis of her gender. Indeed, in our
next section below we outline that evidence in further detail.
D. Sufficiency of the Evidence: Title VII
The City next maintains that it was entitled to judgment
as a matter of law on Franchina's hostile work environment
discrimination claim because she failed, in its opinion, to present
sufficient evidence under a sex-plus theory of discrimination as
required by our Title VII jurisprudence.16 Our de novo review "is
16
We note here that Franchina argues that the City lacks
standing to appeal the hostile work environment discrimination
claim. Specifically, she points out that the jury awarded lump
sum damages on both her hostile work environment and retaliation
claims, but the City did not appeal the retaliation claim. So the
argument goes, the City never objected to damages being awarded in
a lump sum and so even if they prevail on their appeal with respect
to the discrimination claim, lump sum damages are joint and several
and therefore fully attributable to the retaliation claim which is
- 37 -
weighted toward preservation of the jury verdict; 'we must affirm
unless the evidence was so strongly and overwhelmingly
inconsistent with the verdict[] that no reasonable jury could have
returned [it].'" Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d
36, 41-42 (1st Cir. 2002) (quoting Walton v. Nalco Chem. Co., 272
F.3d 13, 23 (1st Cir. 2001)). For the reasons that follow, we
conclude the City's charge overshoots its target.
1. What's Required to Prove a Sex-Plus Claim under Title VII?
Before delving into the heart of the City's argument, we
briefly pause to shed some light on what we perceive to be a
misapprehension by the City over what is required to prove a
hostile work environment claim when a plaintiff (like Franchina)
premises her claim on a "sex-plus theory." In short, "sex-plus
claims" are a flavor of gender discrimination claims where "an
employer classifies employees on the basis of sex plus another
not up for appeal. Franchina thus maintains that there is no live
case and controversy and the discrimination claim is moot.
But the City's notice of appeal was all encompassing. It
specifically stated that it was appealing "all adverse orders and
rulings made by the District Court in this action," including "all
judgments and amended judgments." Thus, at the very least, it
certainly had standing to challenge the retaliation claim. While
it is true that the City provided no argumentation on the merits
of the retaliation claim, we will assume (favorably to the City)
that the argument was not waived. See De Jesús v. LTT Card Servs.,
Inc., 474 F.3d 16, 20 n.6 (1st Cir. 2007). That said, we see no
need to delve deep into the retaliation issue. Indeed, much of
the same evidence that supports the discrimination claim alleged
by Franchina similarly supports her retaliation cause of action.
- 38 -
characteristic." Chadwick v. WellPoint, Inc., 561 F.3d 38, 43
(1st Cir. 2009) (quoting 1 Barbara Lindemann & Paul Grossman,
Employment Discrimination Law 456 (3d ed. 1996) (emphasis in
original)). The City contends, as best we can tell, that for a
plaintiff to be successful under a sex-plus theory, a separate,
more stringent evidentiary standard exists than for straight
claims of sex discrimination. The City, it seems, believes that
under a sex-plus theory, plaintiffs are required to identify a
corresponding sub-class of the opposite gender and show that the
corresponding class was not subject to similar harassment or
discrimination. Thus, for Franchina to succeed, the City tells us
she is required to have presented evidence at trial of a
comparative class of gay male firefighters who were not
discriminated against. Without such a showing, the City contends,
it would not be possible to prove that any sort of differential
treatment a plaintiff experiences is necessarily predicated on his
or her gender.
This approach--one that we have never endorsed--has some
rather obvious flaws. Indeed, at oral argument, the City
recognized one of them in its concession that such a standard would
permit employers to discriminate free from Title VII recourse so
long as they do not employ any subclass member of the opposite
gender. But, of course, that cannot be. Under such an approach,
for example, discrimination against women with children would be
- 39 -
unactionable as long as the employer employed no fathers. But see
Chadwick, 561 F.3d at 41.17 The result that would follow from the
City's approach would, thus, be inapposite to Title VII's mandate
against sex-based discrimination.
Indeed, at the advent of sex-plus claims, courts
recognized that "[t]he effect of [Title VII] is not to be diluted
because discrimination adversely affects only a portion of the
protected class." Sprogis v. United Air Lines, Inc., 444 F.2d
1194, 1198 (7th Cir. 1971), cert denied, 404 U.S. 991 (1971); see
also Chadwick, 561 F.3d at 42 n.4 (explaining that "discrimination
against one employee cannot be remedied solely by
nondiscrimination against another employee in that same group").
Similarly, the effect of Title VII is not to be diluted because
discrimination adversely affects a plaintiff who is unlucky enough
to lack a comparator in his or her workplace.
The City's position conflicts also with Title VII's text
and jurisprudence. Requiring a plaintiff to point to a comparator
of the opposite gender implies the inquiry is that of "but-for"
causation. That is to say, the City's approach requires Franchina
to make a showing that, all else being equal (the "plus" factors
17 Sexual harassment against black women would also be
unactionable as sex discrimination as long as the employer employed
no black men. But see Jefferies v. Harris Cnty. Cmty. Action
Ass'n, 615 F.2d 1025, 1034 (5th Cir. 1980) ("It is clear from the
foregoing cases that an employer may not single out black women
for discriminatory treatment.").
- 40 -
being the same), the discrimination would not have occurred but
for her gender. Title VII requires no such proof. The text bars
discrimination when sex is "a motivating factor," not "the
motivating factor." 42 U.S.C. § 2000e-2(m) ("[A]n unlawful
employment practice is established when the complaining party
demonstrates that . . . sex . . . was a motivating factor for any
employment practice, even though other factors also motivated the
practice."). And, moreover, the Supreme Court has explicitly
rejected the "but for" standard. See Price Waterhouse v. Hopkins,
490 U.S. 228, 240 (1989) ("To construe the words 'because of' as
colloquial shorthand for 'but-for causation' . . . is to
misunderstand them.").
In sum, the City advocates a standard for sex-plus claims
that requires plaintiffs to allege more than what is required for
traditional sex discrimination claims. But we have held that sex-
plus "does not mean that more than simple sex discrimination must
be alleged." Chadwick, 561 F.3d at 43. Chadwick, in other words,
made clear that the sex-plus label is no more than a "heuristic .
. . , a judicial convenience developed in the context of Title VII
to affirm that plaintiffs can, under certain circumstances,
survive summary judgment [and obtain a favorable verdict at trial]
even when not all members of a disfavored class are discriminated
against." Back v. Hastings On Hudson Union Free Sch. Dist., 365
- 41 -
F.3d 107, 118 (2d Cir. 2004). With these principles in mind we
move on to the City's sufficiency of the evidence challenge.
2. Was there Sufficient Evidence to Support Franchina's Claim?
At core, the City believes that Franchina has presented
no evidence to support her claim that the harassment she
experienced was a result, at least in part, of her gender.18
Rather, it contends Franchina inappropriately blurred the line
between sex and sexual orientation discrimination under Title VII.
According to the City, even though, arguendo, she may have
presented evidence demonstrating discrimination as a result of the
latter (her sexual orientation), she presented little to no
evidence of the former (her gender). And such sexual orientation
bigotry, the argument goes, does not enjoy Title VII protection
under Higgins v. New Balance Athletic Shoe, Inc., a nearly twenty-
year-old case in which we concluded that Title VII does not
proscribe harassment based solely on one's sexual orientation.
194 F.3d 252, 258-59 (1st Cir. 1999).19 While that may be true,
18
In its brief, the City's argument here is primarily premised
on Franchina's failure to present evidence showing that a
comparator class (of gay male firefighters) was not subject to the
same discriminatory actions alleged by Franchina. For the reasons
discussed at length above, however, that argument cannot stand.
19
Though the tide may be turning when it comes to Title VII's
protections, see Hively v. Ivy Tech Community College of Ind., 853
F.3d 339, 341 (7th Cir. 2017) (holding en banc that discrimination
on the basis of sexual orientation is a form of sex
discrimination), it is not our job here to posit whether Higgins
should be reexamined. Though Franchina originally brought a
separate claim alleging sexual-orientation discrimination under
- 42 -
we do not believe that Higgins forecloses a plaintiff in our
Circuit from bringing sex-plus claims under Title VII where, in
addition to the sex-based charge, the "plus" factor is the
plaintiff's status as a gay or lesbian individual. Indeed, Higgins
expressly disclaimed reaching a conclusion on that issue. See 194
F.3d at 260 (explaining that while appellant made a sex-plus
argument on appeal, that claim "never surfaced in the district
court" and, therefore, the court would not reach that issue on the
merits). In sex-plus claims brought under Title VII "the simple
question posed . . . is whether the employer took an adverse
employment action at least in part because of an employee's sex."
Chadwick, 561 F.3d at 43 (emphasis in original). And we see no
reason why claims where the "plus-factor" is sexual orientation
would not be viable if the gay or lesbian plaintiff asserting the
claim also demonstrates that he or she was discriminated at least
in part because of his or her gender.
Here, Franchina presented a plethora of evidence showing
that the impetus for the discrimination she sustained was based in
part on her being a female. In gender discrimination cases
premised on a hostile work environment, Title VII permits a
plaintiff to prove unlawful discrimination by demonstrating that
Title VII, the district court dismissed that count at the motion
to dismiss stage of this case. Franchina did not appeal that
decision and so it is not before us.
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the "workplace is permeated with 'discriminatory intimidation,
ridicule, and insult' that is 'sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment.'" Harris, 510 U.S. at 21 (citations
omitted). "Evidence of sexual remarks, innuendos, ridicule, and
intimidation may be sufficient to support a jury verdict for a
hostile work environment." O'Rourke, 235 F.3d at 729. Here, there
was repeated evidence that Franchina was called a "bitch," "cunt,"
and "Frangina." The use of these words is inherently "gender-
specific" and their "repeated and hostile use . . . . can
reasonably be considered evidence of sexual harassment."
Passananti v. Cook Cnty., 689 F.3d 655, 666 (7th Cir. 2012). In
fact a "raft of case law . . . establishes that the use of sexually
degrading, gender-specific epithets, such as 'slut,' 'cunt,'
'whore,' and 'bitch' . . . , has been consistently held to
constitute harassment based upon sex." Forrest, 511 F.3d at 229;
see also State of Conn. v. Baccala, 163 A.3d 1, 13 (Conn. 2017)
(explaining that "fat ugly bitch" and "cunt" are "one or more of
the most vulgar terms known in our lexicon to refer to [the female]
gender"). This case is no different. In fact, there was more.
There was also evidence that women were treated as less
competent; a treatment barred by Title VII. Oncale v. Sundowner
Offshore Servs. Inc., 523 U.S. 75, 80 (1998) ("The critical issue,
Title VII's text indicates, is whether members of one sex are
- 44 -
exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.") (quotation marks
omitted). There was evidence that men treated women better when
they were perceived as willing to have sex with them. There was
evidence that Franchina was subjected to humiliating sexual
remarks and innuendos by Ferro, including asking the plaintiff if
she wanted to have babies and if he could help her conceive. This
type of sexually based animus is a hallmark of Title VII. Id.
(noting that "the inference of discrimination [is] easy to draw .
. . [when] the challenged conduct typically involves explicit or
implicit proposals of sexual activity"); Marrero, 304 F.3d at 19
(observing that repeated "humiliating sexual remarks and
innuendos" are actionable under Title VII).
In sum, the jury heard evidence of repeated hostile,
gender-based epithets, ill treatment of women as workers, sexual
innuendoes, and preferential treatment for women who were more
likely to sleep with the men of the Department. This sampling of
evidence demonstrates that the "accumulated effect . . . taken
together" constitutes a hostile work environment. O'Rourke, 235
F.3d at 729.
3. Did the Judge Accurately Convey to the Jury What was Required
Under Title VII?
Lastly, the City quibbles over the judge's jury
instructions--specifically as to how he conveyed to the jury what
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elements were required in order to prove a sex-plus claim under
Title VII. We review preserved claims of instructional error under
a split standard. Questions as to whether jury instructions
capture the essence of the applicable law are reviewed de novo,
while questions as to whether the court's choice of phraseology in
crafting its jury instructions is unfairly prejudicial are
reviewed for abuse of discretion. DeCaro v. Hasbro, Inc., 580
F.3d 55, 61 (1st Cir. 2009). Because the question here is whether
the applicable law was adequately conveyed, our review is de novo.
The supposedly problematic instruction reads as follows:
Element three requires that harassment must be based on
gender. The plaintiff need not prove that all women
were discriminated against or were harassed, but she
must prove that she was harassed at least in part because
she is a woman.
In other words, she may meet this element by proving
that she was harassed because she is part of a subclass
of women, in this case lesbians, if she also proves that
this harassment was at least in part because of her sex
or gender.
The City argues that this instruction is inconsistent
with the law, and states that the following sentence should have
been added in order for the instruction to be legally sufficient:
"If you find that Ms. Franchina faced harassment solely because of
her sexual orientation, then she has not proven that she faced
harassment because of her gender."
Where "a party assigns error to the failure to give a
requested instruction, the threshold inquiry is whether the
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requested instruction was correct as a matter of law." Shervin,
804 F.3d at 47. If that threshold is met, the challenger must
make two subsequent showings: first that the proposed instruction
is "not substantially incorporated into the charge as rendered"
and second that it is "integral to an important point in the case."
White, 221 F.3d at 263 (quoting United States v. DeStefano, 59
F.3d 1, 2 (1995)).
While the City's requested jury instruction is, in fact,
legally correct (thus passing the threshold question), we fail to
see what supposed deficiency in the instructions the judge actually
gave to the jury would be cured by the City's requested insert.
We have made clear that the inquiry in sex-plus claims is whether
the harassment was caused "at least in part because of an
employee's sex," Chadwick, 561 F.3d at 43 (emphasis in original),
which is exactly what the district court instructed. As such, the
instruction was "in substance, legally correct," Shervin, 804 F.3d
at 47, and the City's requested instruction would have been mere
superfluity. Failure to include superfluous language is not an
error. Having addressed each of the City’s Title VII disputes, we
move on.
E. Front Pay
Even if we decline to invalidate the entire jury verdict-
-which, for the reasons discussed at length above, we just have--
the City argues that at the very least we must still strike the
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judge's award of front pay to Franchina. That is so, the City
contends, because the district court erred post-trial when it
failed to grant the City's motion to alter or amend the judgment
pursuant to Fed. R. Civ. P. 59(e). The City's argument on this
point is three-fold. First, the City contends that there was no
competent evidence to support any award of front pay damages.
Second, the City argues that the judge erred in failing to instruct
the jury that any front pay award needed to be reduced to present
value. And third, the City takes issue with Franchina's failure
to present expert testimony which it says was necessary to support
a front pay claim.20
We review a district court's ruling on a Rule 59(e)
motion for abuse of discretion. Guadalupe-Báez v. Pesquera, 819
F.3d 509, 518 (1st Cir. 2016). In doing so, we keep in mind that
"[s]uch a motion must either establish a clear error of law or
point to newly discovered evidence of sufficient consequence to
make a difference." Id.
20While numerous other Circuits have explicitly stated front
pay determinations are only to be made by a judge and should never
go to a jury, see, e.g., Duke v. Uniroyal Inc., 928 F.2d 1413,
1424 (4th Cir. 1991); Fortino v. Quasar Co., A Div. of Matsushita
Elec. Corp. of Am., 950 F.2d 389, 398 (7th Cir. 1991); Newhouse v.
McCormick & Co., Inc., 110 F.3d 635, 643 (8th Cir. 1997), and
though we have previously noted that there may be some question
concerning the propriety of a jury making front pay calculations
in our Circuit, see Johnson v. Spencer Press of Me., Inc., 364
F.3d 368, 380 n.8 (1st Cir. 2004) (citing Lindemann & Grossman,
Employment Discrimination Law 640–41 (Cane, Jr. et al. eds., 3d
ed. 1996)), this issue is not before us today.
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"[F]ront pay, within the employment discrimination
universe, is generally equitable in nature. It follows a fortiori
from the equitable nature of the remedy that the decision to award
or withhold front pay is, at the outset, within the equitable
discretion of the trial court." Lussier v. Runyon, 50 F.3d 1103,
1108 (1st Cir. 1995) (citations omitted) (emphasis in original).
And in a similar context (the equitable award of back pay) under
Title VII, our abuse of discretion standard must necessarily be
"measured against the purposes which inform Title VII." Albemarle
Paper Co. v. Moody, 422 U.S. 405, 417 (1975). These purposes, our
judicial superiors tell us, include "eradicating discrimination
throughout the economy and making persons whole for injuries
suffered through past discrimination." Id. at 421. Further, our
precedent makes plain that we are "flexible . . . in the
construction of remedial awards," Selgas v. Am. Airlines, Inc.,
104 F.3d 9, 13 (1st Cir. 1997), and, therefore, we generally give
district courts significant latitude in awarding front pay. See
Lussier, 50 F.3d at 1110 (explaining that "[b]ecause the hallmarks
of equity have long been flexibility and particularity . . . . a
rule that confers latitude upon the district court to handle the
interface between [an issue related to] front pay differently in
different cases is fully consistent with this storied heritage").
This flexibility also derives in large part from the inherently
imprecise nature of the award. See Johnson v. Spencer Press of
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Me., Inc., 364 F.3d 368, 380 (1st Cir. 2004) (explaining that
awarding of front pay "necessarily involve[s] predictions of
events yet to come"). As such, "decisions as to front pay are
generally afforded more deference than decisions as to back pay."
Id. "After all, the dispensation of front pay--if only because of
its relatively speculative nature--is necessarily less mechanical
than back pay, and the amount of front pay--if only because of its
predictive aspect--is necessarily less certain than back pay."
Lussier, 50 F.3d at 1109 (internal citation omitted).
In requesting front pay, the burden is on the plaintiff-
-here, Franchina--to present evidence in support of the award.
Cf. Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 236 (1st Cir.
2006). And while we have never before needed to explicitly spell
out the factors a court may consider in determining whether front
pay is justified, courts throughout the country have looked at a
wide range of indices in the crafting of fair front pay awards,
including (but certainly not limited to):
(1) the plaintiff's age, (2) the length of time the
plaintiff was employed by the defendant employer, (3)
the likelihood the employment would have continued
absent the discrimination, (4) the length of time it
will take the plaintiff, using reasonable effort, to
secure comparable employment, (5) the plaintiff's work
and life expectancy, (6) the plaintiff's status as an
at-will-employee, (7) the length of time other employees
typically held the position lost, (8) the plaintiff's
ability to work, (9) the plaintiff's ability to work for
the defendant-employer, (10) the employee's efforts to
mitigate damages, and (11) the amount of any liquidated
or punitive damage award made to the plaintiff.
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Ogden v. Wax Works, Inc., 29 F. Supp. 2d 1003, 1015 (N.D. Iowa
1998) (internal citations omitted) (collecting cases from our
Circuit as well as our sisters in the Second, Third, Fourth, Sixth,
Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits).
Finally, we note that "when future payment or other pecuniary
benefits are to be anticipated, the [award] should be made up on
the basis of their present value only." St. Louis Sw. Ry. Co. v.
Dickerson, 470 U.S. 409, 411 (1985). And failure to instruct the
jury to reduce an award of future payment to present day value
ordinarily requires a new trial. See Conway v. Electro Switch
Corp., 825 F.2d 593, 603 n.5 (1st Cir. 1987) ("We note, as a final
matter, that the jury was not instructed to reduce its award of
front pay to present value, thus . . . the district court must
order a new trial on the front pay question.").
1. Exploring the Arguments
Because the City's second argument does not cause us to
tarry, we begin there. The City contends that the judge's front
pay jury instruction constituted reversible error because it
failed to instruct the jury that any award needed to be reduced to
present day value. Given our clear case law, ordinarily we would
agree.21 However, we ask the reader to recall that, although the
21
Had the district court not made an independent award, our
standard of review would be de novo rather than abuse of
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district court did initially submit the front pay issue to the
jury, it went a step further and exercised its equitable discretion
to independently (and alternatively) award Franchina front pay
(and at the same time clearly stated the award had been reduced to
present day value). And the City is in agreement that a judge may
fashion a front pay award--at the charge conference, the City's
counsel argued that the front pay question should not be given to
the jury because "front pay is an equitable matter to be determined
by the Court." Therefore, because the City makes no challenge to
the district judge's ability to make front pay determinations, we
move on to discuss the City's more substantive attacks, the essence
of both being the City's contention that "[Franchina] presented
virtually zero evidence upon which a jury or the Court could
fashion an appropriate award on front pay."
The City challenges the sufficiency of Franchina's front
pay award claiming she failed to meet her burden of presenting the
"essential data" needed to calculate such an award. Relying on a
D.C. Circuit case, the City tells us "essential data" constitutes
"the amount of the proposed award, the length of time the plaintiff
expects to work for the defendant, and the applicable discount
discretion. See DeCaro v. Hasbro, Inc., 580 F.3d 55, 61 (1st Cir.
2009) (explaining that we review de novo questions as to whether
jury instructions capture the essence of the applicable law).
- 52 -
rate." See Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995)
(citation omitted).
We agree that Franchina bore the burden of proving her
entitlement to front pay in the amount awarded. We disagree,
though, that she failed to produce any evidence in support of the
district court's determination. In deciding on a request for front
pay, a district court can consider an array of issues. A non-
exhaustive list includes the following: Is the plaintiff able and
allowed to return to work with the employer? What pay and benefits
was she receiving? What other work can and will she likely obtain
to offset the loss? What pay increases might she have obtained
had she remained employed? For how long would she have worked?
What will be the effects of inflation? What will be the rate of
return on any award?
Franchina's evidence covered most but not all of these
factors (for instance she did not propose a discount rate). In
terms of the evidence she did present, though, Franchina
demonstrated the following: She had been earning $98,000 to
$130,000 per year while employed with the Department; she is
permanently disabled from continuing a career as a first responder
in the Department; and she is receiving $25,000 per year in
disability benefits. There was also testimony that she possessed
excellent professional skills and leadership qualities, and
although she started in the Department as an entry-level Rescue
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Technician, she quickly moved through the ranks and reached the
level of Rescue Lieutenant (a leadership position). Furthermore,
Franchina had worked for ten years in the Department, yet was only
44 years old at the time she left her job. The Department's
pension structure also encouraged Department employees to maintain
employment for great lengths of time. Indeed, future benefits
were linked with longevity of service. And she put on evidence
that numerous other employees spent upwards of 30-35 years with
the Department.
Given all of this, the crucial factor in estimating
future lost wages was the number of years that her annual
unadjusted loss of $73,000 to $105,000 would have continued.
Twenty years would have generated a figure of $1.4 million to $2
million. Adding in for inflation and lost pension would have
bumped this number up. Reducing to present value may have reduced
it as much, or perhaps more. On this record, we see no reason to
conclude that the record's omission of a discount rate rendered an
award of $545,000 improper as a matter of law, at least where the
adjudicator is a trial judge likely well familiar with the concept
of present value. Clearly the judge assumed that the future was
uncertain, and an award for over $1 million unwarranted. Its ample
discretion to discount for uncertainty dwarfed as a practical
matter any loss of precision in discounting for a reasonable rate
of return where the likely duration was perhaps five years.
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Certainly the court could have awarded much less. But its failure
to insist that Franchina provide it with more precise information
provides no reason to set aside the award.
Nonetheless, the City posits that even if we conclude
Franchina presented significant (and relevant) evidence going to
"essential data" for crafting a front pay award, it says her damage
claim is still doomed because she failed to produce an expert
witness who could provide the fact finder with a proper methodology
for reducing any award to present day value.22
The City's primary contention is that it is "standard
practice" for plaintiffs in employment discrimination suits to
present expert testimony on future earnings. Based on this
supposed norm, the City tells us that it thus follows that expert
testimony must always be a requirement for calculating front pay.
To support its argument, the City directs us to Virgo v. Riviera
Beach Assoc., Ltd., 30 F.3d 1350 (11th Cir. 1994), and Lussier, 50
F.3d 1103, two cases where expert testimony was, in fact, presented
at trial. But those cases do not assist the City because neither
22 And even though the district court, in making its
independent front pay determination, expressly indicated that it
had discounted the award to present day value, the City argues
there is no indication it actually did so. Rather, as the City
accuses, the district court "did not make its own determination,
equitable or otherwise . . . but merely accepted the jury's
[unsupported] front pay award." Given the considerable discretion
afforded the district court in fashioning an equitable remedy, we
have no reason to believe the court didn't do what it said it had
done.
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Virgo nor Lussier tackled the issue we are confronted with here--
whether expert testimony is a precondition for the calculation of
any front pay award.
The City points to no First Circuit case in which we
reached the conclusion the City now advocates for (and we have
found none in our independent search).23 However, several of our
sister circuits have had occasion to opine on this issue. None
have concluded that expert testimony on reduction to present day
value is a mandatory prerequisite for an award of future earnings.
See Maxfield v. Sinclair Int'l, 766 F.2d 788, 797 (3d Cir. 1985)
("Nor do we believe that expert testimony was needed to reduce the
damage award to present value."); Bonura v. Sea Land Serv., Inc.,
505 F.2d 665, 668–69 (5th Cir. 1974) (explaining that actuarial
and mathematical evidence are not prerequisites for recovery of
lost future wages); Pa. R.R. Co. v. McKinley, 288 F.2d 262, 265
(6th Cir. 1961); Heater v. Chesapeake & Ohio Ry. Co., 497 F.2d
1243, 1250 (7th Cir. 1974); Duncan v. St. Louis-San Francisco Ry.
Co., 480 F.2d 79, 87 (8th Cir. 1973); Cassino v. Reichhold Chems.,
Inc., 817 F.2d 1338, 1348 (9th Cir. 1987).
Moreover, we have at least once before implied that no
expert testimony is needed in situations like this. In McDonald
v. Federal Laboratories, Inc., 724 F.2d 243 (1st Cir. 1984), we
23The City also fails to point us to a single case from any
of our sister circuits reaching such a conclusion.
- 56 -
upheld a district court's jury instruction that failed "to specify
a particular present value discount rate [and] fail[ed] to set
forth a formula for the jury to reduce to present value any damages
awarded for future diminution of earning capacity." Id. at 247.
Instead, the district court there merely instructed the jury to
reduce the award to present value, using a "reasonable rate of
interest." Id. We recognized that this rather simplistic
instruction was the result of the "the parties' own failure to
provide probative evidence of an appropriate discount rate," but
nevertheless, we found no error in the court's instruction. Id.
(emphasis added). To accept the City's argument that Franchina's
future earnings damages should be thrown out for lack of expert
testimony would be odd in light of our upholding of the front pay
award in McDonald (where we specifically acknowledged the lack of
probative evidence on discount rate and left the factfinder to its
own devices in properly discounting for present value). See id.
Additionally, we have found that at least some district
courts in our Circuit have assumed this rule for years. See
McKeown v. Woods Hole, 9 F. Supp. 2d 32, 48 n.16 (D. Mass. 1998)
(explaining that "[t]he majority of courts also do not require
evidence, whether by expert testimony and/or annuity tables,
suggesting to the jury a method to reduce future loss of earnings
to its present value"); Worden v. Consol. Rail Corp., 689 F. Supp.
35, 37–38 (D. Mass. 1988) ("[P]laintiff's failure to come forth
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with expert or other evidence regarding methods of present value
computation is not fatal.").
And we note that over fifty years ago the Sixth Circuit
explicated in Pennsylvania R. Co. v. McKinley, 288 F.2d at 265,
that "[j]urors are presumed to be intelligent people, generally
aware, from today's economy and their own experience with it, of
the earning value of money when placed in safe investments." In
other words, because the effect of inflation and interest rates on
the value of money is otherwise self-evident (and assumed to be
common knowledge), "a jury, unaided by specific testimony as to
money values, could themselves, being told that the award should
be only money value, properly apply the applicable rule." Id.
This logic applies with even greater force to judges given, as we
mentioned earlier, that they are routinely called upon to make
front pay calculations and are presumed to be more knowledgeable
about necessary reductions to present day value and how to make
them. See Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 341-42
(1988).
Given all of this, we decline to adopt an absolute rule
mandating the presentation of expert testimony in every instance
in determining future pay. Moreover, based upon our review of the
entire record, we find no evidentiary insufficiency and no abuse
- 58 -
of discretion in the district court's front pay call.24 We thus
leave Franchina's award of damages undisturbed.25
Conclusion
The abuse Lori Franchina suffered at the hands of the
Providence Fire Department is nothing short of abhorrent and, as
24The City suggests that because Franchina's proposed witness
list did not designate an expert to calculate the discount rate,
it assumed she was not seeking a front pay award. Had it known
she was, in fact, asking for future earnings, it might have
retained an expert of its own on this topic. While it is
unfortunate that the City made this dubious assumption, it in no
way impacts our outcome here. In the complaint, Franchina clearly
stated in her Title VII claim against the City that she "suffered
and continues to suffer damages." The City, then, should have
been on notice that she was seeking damages and could certainly
have posed in an interrogatory (which is meant to clarify the scope
of the allegations in the complaint) a question to ascertain
precisely what types of damages Franchina was seeking.
Furthermore, in the City's pre-trial memorandum (filed a month and
a half before trial), it included proposed jury instructions on
the topic of damages stating: "You may determine the amount of any
wages and fringe benefits plaintiff would have earned in his [sic]
employment with defendant were it not for defendant's wrongful
conduct." (Emphasis added). Such language clearly suggests that
the City was aware that Franchina could seek front pay.
25 We pause to note that while both parties also point us to
our recent decision in Travers v. Flight Servs. & Sys., Inc., 808
F.3d 525 (1st Cir. 2015), to support their respective arguments,
we are not convinced it is relevant to our analysis. In Travers
we were tasked with determining the validity of a front pay award
(for purported loss of wages spanning a twenty-year time frame)
supported by only non-expert testimony. Id. at 545. Unlike here,
however, the award in that case was based on both federal and
Massachusetts law and "the damages were not apportioned between
them." Id. at 546 n.15. We noted that the crux of our analysis
in Travers "considered only Massachusetts law." Id. at 545 n.14.
Thus it is not fully clear how transferable the holding in Travers
is to the case at hand and so we do not rely on it. Still, for
the reasons explained above, any consideration of Travers--even
assuming it were relevant--would result in the same outcome.
- 59 -
this case demonstrates, employers should be cautioned that turning
a blind eye to blatant discrimination does not generally fare well
under anti-discrimination laws like Title VII.
Affirmed. Costs awarded to appellee.
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