Metro, News

Court upholds ruling against Providence Fire Department

Discrimination case based on sex, sexual orientation has potential implications for Title VII

By
Senior Staff Writer
Tuesday, February 20, 2018

The U.S. First Circuit Court of Appeals upheld a 2016 ruling Jan. 25 in favor of former Providence firefighter Lori Franchina, who had originally sued the Providence Fire Department in 2012 on the grounds that her colleagues had harassed her because of her sexual orientation and gender. According to some legal experts, the case could help expand how Title VII is defined under federal law since it does not currently prohibit discrimination based on sexual orientation.

“The abuse Lori Franchina suffered at the hands of the Providence Fire Department is nothing short of abhorrent,” Judge O. Rogeriee Thompson wrote in her decision. “And as 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.” Title VII of the Civil Rights Act currently prohibits employment discrimination on the basis of “race, color, religion, sex or national origin,” according to federal law. The Court also affirmed the jury’s earlier ruling to award Franchina over $500,000 in “front pay as well as emotional damages,” which include Post-Traumatic Stress Disorder.

Franchina’s lawyer John Martin said he successfully employed the “sex-plus theory” of discrimination to prove that Franchina had suffered not only from sex discrimination in violation of Title VII, but also from discrimination based on sexual orientation.

The Franchina case indicates how sexism and gender-based stereotyping can influence the way in which discrimination based on sexual orientation is expressed, said Gary Busek, legal director of GLBTQ Advocates and Defenders.

According to court testimony recounted by Thompson in her decision, Franchina, who identifies as lesbian, began experiencing harassment in 2006 upon being assigned to work with Andre Ferro, a fellow firefighter.  When they first met, Ferro immediately asked her whether she liked women. Franchina did not answer. “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,” Ferro told Franchina, according to court records. Soon after their initial meeting, Ferro rubbed his nipples and loudly proclaimed Franchina as his “lesbian lover.” He did so in front of their colleagues and during an ongoing emergency call. Though the station chief later reported the incident, which prompted Ferro’s dismissal in 2007, he was rehired by the department in 2008, according to court records. 

Similarly, in 2001, while Ferro was “implicated” in a Title VII case for sexually inappropriate behavior toward colleague Julia O’Rourke, he didn’t face any long term disciplinary action and ultimately kept his job, Thompson noted.

Ferro was not the only individual to sexually harass Franchina, according to court records. Following Franchina’s 2006 interaction with Ferro and his pending dismissal, a pattern of harassment developed in the station against Franchina in retaliation to Ferro’s punishment, creating a “hostile work environment,” court records indicate. Many of her colleagues openly referred to her as “Frangina,” “cunt” and “bitch” in her presence, according to Franchina’s testimony.

In her decision, Thompson also noted that Franchina alleges that the station cook prepared food intended to make her violently sick on multiple occasions. A station white-board contained 21 insulting messages about Franchina, including: “Be careful how you talk to her, she’ll bark at you” and “Frangina leads Team Lesbo to victory.” Following Franchina’s promotion to lieutenant, a colleague approached her and said, “I will never take a … order from you,” Thompson reported. Her subordinates openly ignored or undermined her orders on emergency calls, including the need for a rescue vehicle to help treat a victim of a car crash who later died, she claimed in court documents.

“There were folks that showed contempt for women (in the department),” said Chief J. Curtis Varone in testimony from the hearing.

Lt. Danielle Masse, a firefighter who identifies as lesbian and is currently suing the department for discrimination, said in her testimony in Franchina’s case that women in the department are viewed as “less competent” and are “spoken to as if they have no authority.”

There is a culture that encourages firefighters to resolve issues between themselves and within the fire department, said Lt. Elliot Murphy, who has twenty years of experience on the job.

Even when Franchina reported her situation, the city and her supervisors — some of whom sought to downplay the issue — were less than adequate at responding to her complaints, Martin said.

“At the very highest levels of the fire department and the city government there were verified complaints and overwhelming proof of vicious harassment and retaliation that were completely ignored,” Martin said. No individual besides Ferro was fired or formally reprimanded, he added.

According to court documents, when Franchina reported to Chief Michael Crawford that a subordinate intentionally sprayed her face with “blood and brain matter” while treating a “suicide-attempt victim,” Crawford wrote in his complaint to the city’s Equal Employment Opportunity Officer that he thought that she was “blowing (the incident) out of proportion.”

Following Thompson’s decision supporting Franchina, more LGBTQ+ individuals will likely come forward with discrimination and harassment claims, said Gregory R. Nevins, Counsel and Employment Fairness Project director at Lambda Legal Services. “It’s rare to almost nonexistent to find a circumstance where anti-gay or lesbian harassment does not have some sort of gender-based overtone to it.”

Because Franchina’s case was centered on sex discrimination, Thompson did not change the circuit’s current interpretation of sexual orientation.  To do so would require a separate legal process and the agreement of all 10 of the First Circuit Court of Appeals’ judges. Only the Seventh Circuit Court of Appeals, which covers Indiana, Illinois and Wisconsin, has included sexual orientation in Title VII protection, Buseck said.

Still, Thompson’s strongly-written ruling seems to be hinting that the First Circuit Court of Appeals might be in agreement with the Seventh Circuit, Buseck said.

The City will not be appealing the ruling, according to Emily Crowell, director of communications for the Mayor’s Office.

In her court testimony, Olayinka Oredugba, the city’s sole Equal Opportunity Officer responsible for 2300 employees, said that she lacked the resources to investigate claims of discrimination to the best of her abilities.

“The City of Providence remains committed to maintaining a workplace that is free from harassment and discrimination,” Crowell said in an email statement to The Herald. “The City takes any complaint seriously and investigates each matter.”

Franchina acquired injured-on-duty status in 2011 and formally retired from firefighting in 2013, according to her lawyer. She is now working in the medical field and searching for a new career.

“It’s going to harm her for the rest of her life,” Martin said. “You can’t undo what’s happened, can’t fix it. She’s always going to have PTSD, she’s never going to be a firefighter again and that’s something the judge can’t fix.”

Franchina could not be reached for comment.

Firefighters’ Union President Paul Doughty did not respond to a request to comment.