Smith v. City of New Smyrna Beach

Filing 213

ORDER denying 196 Motion for Judgment as a Matter of Law and Motion for New Trial. Signed by Judge Roy B. Dalton, Jr. on 9/16/2013. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MELISSA SMITH,
Plaintiff,
v.

Case No. 6:11-cv-1110-Orl-37KRS

CITY OF NEW SMYRNA BEACH,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Defendant, City of New Smyrna Beach’s Motion for Judgment as a Matter
of Law or, in the Alternative, Defendant’s Motion for New Trial and
Incorporated Memorandum of Law (Doc. 196), filed July 19, 2013; and

2.

Plaintiff’s Response to Defendant, City of New Smyrna Beach’s Motion for
Judgment as a Matter of Law or, in the Alternative, Defendant’s Motion for
New Trial and Incorporated Memorandum of Law (Doc. 207), filed
August 5, 2013.

Discrimination in the workplace anywhere in the United States is inconsistent
with the concept of ordered liberty as first espoused by Thomas Jefferson in July of
1776. The Declaration of Independence (U.S. 1776). “Title VII is central to the federal
policy of prohibiting discrimination in the Nation’s workplaces and in all sectors of
economic endeavor.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2522
(2013). As we continue to strive toward “a more perfect union,” U.S. Const. pmbl., first
responders like the men and women of the nation’s fire and rescue services have

become iconic symbols for America. They are rightly seen as modern day heroes and
heroines who put service and the interests of others ahead of their own needs and
personal safety. This case presented hotly disputed facts surrounding Plaintiff Melissa
Smith’s claims that the first responder department with which she was employed failed
to live up to the standards imposed by Title VII. Based on its view of the evidence
presented, the jury found that Defendant City of New Smyrna Beach (“the City”)
engaged in disparate treatment, created a hostile work environment, and retaliated
against a female firefighter based on her gender. The Court finds no grounds to disturb
the jury’s verdict.
BACKGROUND1
Plaintiff brought this suit under Title VII of the Civil Rights Act of 1964 and the
Florida Civil Rights Act, alleging that throughout her career as a firefighter with the City’s
Fire Department, she was disparately treated based on her sex, subjected to a hostile
work environment, and retaliated against when she complained to City personnel and
management. (Doc. 1.)
Plaintiff worked at the Fire Department from 2003 to 2008. (Doc. 154, 227:14–15;
Joint Ex. 8.) During her interview for the job, Fire Chief Tim Hawver told Plaintiff, “I only
really hire men that hunt, fish, or camp. . . . But I heard you’re a pretty good ball player.”
(Doc. 154, 188:18–21, 189:4–6.) He also discussed her role as a single mother. (Id. at
189:13–19.)
Upon Plaintiff’s arrival at the Fire Department, she discovered that her Standard
Operating Procedures manual had been covered with a Cosmopolitan magazine cover.
1

These facts are drawn from the evidence presented at trial and are viewed in
the light most favorable to Plaintiff. See Mich. Millers Mut. Ins. Corp. v. Benfield, 140
F.3d 915, 921 (11th Cir. 1998).

2

(Doc. 158, 175:15–176:5; Pl. Ex. 5.)
Soon after Plaintiff started work, Battalion Chief Michael Coats told Plaintiff that
he did not believe that women should be in the fire service and that it was Plaintiff’s
responsibility to prove otherwise. (Doc. 154, 197:17–20.) In general, Battalion Chief
Coats “was more than happy to express his disinterest about women being in the fire
service,” such as by making “comments about them [not] being able to pull their own
weight or do the job of a man.” (Doc. 156, 197:1–4.) Plaintiff told Deputy Chief David
McAllister about her interactions with Battalion Chief Coats, and Deputy Chief McAllister
told her, “Well, it sounds like you have a hostile working environment. You need to file
that.” (Doc. 154, 238:5–11.) Deputy Chief McAllister also told her that if she did file, it
would create a lot of trouble for her. (Id. at 239:12–13.)
Lieutenant Paul Owens told Plaintiff, “[W]e [don’t] need another split tail around
here.”2 (Doc. 155, 59:7–8; see also Doc. 156, 198:4.) There was other testimony that
Lieutenant Owens felt that women could not do the job as well as men. (Doc. 156,
197:10–11.)
Lieutenant Cindy Richenberg, the only other female in the Fire Department at the
time, told Plaintiff that to survive as a woman there, Plaintiff needed to keep her head
down because her experience was going to be difficult. (Doc. 154, 200:17–201:12.)
Lieutenant Richernberg told Plaintiff about a gender-related incident that she
experienced and said that when she told management about it, she was blamed for it.
(Id. at 215:23–216:6.)
Another woman, Jami Ryle, joined the Fire Department in 2005. (Doc. 156, 3:19–
2

A “split tail” was explained as a derogatory term referencing the female
anatomy. (See Doc. 155, 58:19–24.)

3

21.) Firefighter Ryle testified that she tried to be one of the guys, but some of the men
made her feel like an outcast. (Id. at 35:13–16.) Lieutenant Owens would not allow
Firefighter Ryle to perform certain jobs that male firefighters were allowed to perform.
(Id. at 35:23–36:3.) On another occasion, Firefighter Ryle was the only firefighter made
to apologize for having her gear on improperly when multiple male firefighters
responding to the same scene also had their gear on improperly. (Id. at 41:5–20.)
Plaintiff was also disciplined differently from her male counterparts. For example,
she was written up for leaving the fire station to eat lunch before a meeting when the
male firefighter who ate lunch with her was not written up. (Doc. 154, 208:9–209:2.)
Men at the Fire Department frequently used the computer for non-work-related activities
(including searching for pornography)3 and were not written up, but Plaintiff was written
up for using MySpace. (Id. at 246:14–249:15, 249:20–21; Doc. 156, 16:23–25.) Plaintiff
was also written up for improperly washing a truck that was not even dirty. (Doc. 154,
253:12–255:2.) On another occasion, it was Plaintiff’s duty to wash the fire truck, but
Lieutenant Frank Morris told Plaintiff that it had already been done and to go back
inside. (Id. at 256:6–17.) When the crew noticed that the truck was dirty, Lieutenant
Morris told Battalion Chief Wofford that he told Plaintiff that she did not need to clean
the truck because he thought that it was already clean, but Plaintiff was written up
anyway. (Id. at 256:6–257:8.) Men have left trucks dirty but have never been written up.
(Id. at 254:16–21.)
Firefighter James Roberts made sexual comments to Plaintiff, such as “Oh, I’d
like to bend you over,” and invited her to a swingers’ party. (Id. at 241:13–19, 242:15–
3

There were pornographic magazines in the fire stations, but Plaintiff testified
that they did not bother her. (Doc. 154, 202:24–203:8; Doc. 155, 62:10–13.)

4

20.) He also sent her pornographic videos.4 (Doc. 156, 19:5–6.) After Plaintiff told him
several times to stop, he eventually did. (Doc. 154, 245:5–10.) After that, Firefighter
Roberts said that he no longer wanted to work with Plaintiff.5 (Id. at 245:2–6.)
After Plaintiff got married in 2006, Deputy Chief McAllister and Fire Chief Hawver
asked her multiple times when she was going to get pregnant. (Doc. 155, 12:12–15.)
Deputy Chief McAllister told Plaintiff in front of her husband that he could not wait for
her to get pregnant so that she could come to work as his secretary rather than as a
firefighter. (Id. at 12:15–18; Doc. 157, 9:19–25.) He also commented to Plaintiff’s
husband, “Any time you want to come up to the station, I’ll let you stop by for a few
minutes,” which, in the context of the conversation, Plaintiff’s husband construed to
mean that he should stop by to get her pregnant. (Doc. 157, 10:1–17.)
In July 2007, Plaintiff became pregnant and told people at the Fire Department
about her pregnancy.6 (Doc. 155, 12:19–13:3.) Battalion Chief Wofford told Plaintiff that
Fire Chief Hawver was not happy about her pregnancy, 7 and Fire Chief Hawver ignored
Plaintiff for the next several shifts. (Id. at 13:6–11.) Plaintiff was denied overtime from
that point forward, which impacted her compensation. (Id. at 13:23–14:8.) She was also
removed from the fire station where she had been working out of class as a
driver/engineer (making more money) and placed at another fire station where she
could only work as a firefighter/paramedic. (Id. at 14:12–15:6.) Though Plaintiff was at
4

Firefighter Roberts also sent Firefighter Ryle sexually explicit text messages
and photographs. (Doc. 156, 45:15–18.)
5
Despite Firefighter Robert’s conduct, Plaintiff considered him to be friend.
(Doc. 155, 118:8–13.)
6
Plaintiff ultimately suffered a miscarriage. (Doc. 155, 100:19–20.)
7
The City argues that Fire Chief Hawver’s statement is hearsay. (Doc. 196, p. 7.)
However, a statement of a party opponent is not hearsay. Fed. R. Evid. 801(d)(2). Even
if it were hearsay, any objection is waived because the City did not object during the
testimony.

5

the top of the promotion list, men who had either failed the promotion test or who had
never taken it were then assigned to work out of class in the vacant driver/engineer
position.8 (Id. at 14:25–15:4.)
In August 2007, Plaintiff was making lunch when she accidentally dropped a tuna
can on the floor and said, “Shit.” (Id. at 16:7–12.) Lieutenant Tyrone Ofide responded,
“Ladies shouldn’t talk like that. I don’t know how your husband puts up with you. I can’t
wait to retire so I can tell you what I really think of you.” (Id. at 16:17–23.)
On August 22, 2007, Plaintiff came to work in regular shoes before her shift
began, and Driver/Engineer Scott Kirsch told her that policies would be changing and
that she would no longer be able to wear regular shoes to work. (Id. at 23:17–22.)
Plaintiff then said, “You can kiss my ass. I’m off—not even at work yet.” (Id. at 24:5–7.)
Lieutenant Ofide reported the interaction, and Plaintiff was written up and charged with
cursing at the Fire Department administration. (Id. at 24:23–25:11; Def. Ex. 9.) She was
ultimately suspended for the incident. (Doc. 155, 60:12–19.) Plaintiff testified that the
cursing was merely directed at Driver/Engineer Kirsch, not at the administration.9 (Id. at
188:9–18.) Multiple witnesses testified that men in the Fire Department regularly curse
and have never been disciplined. (Id. at 26:21–27:18; Doc. 156, 42:8–10, 62:2–16,
203:1–5.)
Later on the day of the profanity incident, Plaintiff, Firefighter/Paramedic Michael
8

Firefighter Ryle experienced similar treatment. The downtown fire station is
typically the one staffed with four firefighters because it is the busiest and most central,
while other stations are staffed with less. (Doc. 156, 39:3–20.) When Firefighter Ryle
was scheduled to work as the fourth firefighter at the downtown station, a battalion chief
switched her to another station even though it was an inefficient use of resources and
contrary to normal operations. (Id. at 39:21–40:17.)
9
Union President Roy Hodgins, who was involved with the grievance procedure
regarding the profanity incident, also testified that the cursing was directed at
Driver/Engineer Kirsch. (Doc. 156, 81:3–22.)

6

Gagliardi, and Lieutenant/EMT Ofide responded to a motor vehicle accident in which a
truck rear-ended a bus. (Doc. 155, 29:22–25, 30:24–31:1.) Plaintiff was the lead
paramedic. (Id. at 31:15–16.) At one point, Lieutenant Ofide told Plaintiff that a man in
the truck needed to be extricated, which Plaintiff took to mean that Lieutenant Ofide and
Firefighter Gagliardi were going to do so, as Plaintiff was tending to a man on the bus.
(Id. at 42:24–43:11.) Several days later, Plaintiff was charged with insubordination after
Lieutenant Ofide reported that Plaintiff had been insubordinate toward him. (Id. at 51:1–
5.) However, Plaintiff was in charge of making medical decisions at the scene because
she was the lead paramedic, rather than Lieutenant Ofide, who was merely an EMT.
(Doc. 156, 145:4–146:6, 164:10–165:9.)
Around the same time, a driver/engineer asked Plaintiff to switch shifts with him,
and they filled out the proper paperwork. (Doc. 155, 55:9–23.) Lieutenant Owens did not
approve the shift switch because it would have put Plaintiff and Firefighter Ryle, another
woman, on the same shift. (Id. at 56:3–8.) Lieutenant Owens stated, “I’m not working
with two women” and “[I’m not] going to baby-sit two girls.” (Id. at 56:10–22.) Lieutenant
Owens proposed Firefighter Ty Tarnow as a replacement for the switch, even though—
unlike Plaintiff—Firefighter Tarnow was not on the list to work out of class. (Id. at 57:1–
5.) Lieutenant Owens received a letter of counseling for this incident. (Joint Ex. 14.)
About the same time, Plaintiff reported to the City’s Human Resources (“HR”)
Director Carol Hargy that she was experiencing a hostile work environment. (Doc. 155,
57:20–58:16.) Additionally, throughout her time at the Fire Department, Plaintiff had
talked to Fire Chief Hawver, Deputy Chief McAllister, Battalion Chief Wofford, Battalion
Chief Don West, Lieutenant Brian Grace, Lieutenant Chris Dymond, Lieutenant
Richenberg, Lieutenant Owens, Lieutenant Don Wiech, and Union President Roy

7

Hodgins about what she perceived to be harassment based on her gender. (Doc. 156,
23:25–24:13.)
In October 2007, after Plaintiff returned from her suspension for the profanity
incident, Plaintiff was again moved to another fire station. (Doc. 155, 61:14–15, 64:21–
22.) Lieutenant Grace told her that she had a “big target” on her back and that there
were going to be new rules, namely, that she could not have “girly” magazines such as
Glamour and Cosmopolitan in the fire station and that she was not permitted to bring
tampons into the fire station but would have to change her tampons in her car. (Id. at
61:14–62:25.) Lieutenant Grace said that the no-tampons rule was at the direction of
Battalion Chief Wofford. (Id. at 63:6–9.)
Plaintiff then received notice that a second investigation was being conducted in
relation to the bus incident, this time for willful neglect in the performance of duties. (Id.
at 65:5–11.) Plaintiff was shocked by this additional investigation and suffered an
emotional breakdown due to the culmination of what she perceived to be harassment
based on her gender. (Id. at 66:16–67:4.) Plaintiff again met with HR Director Hargy
about how she was being treated. (Id. at 66:20–68:1.)
Fire Chief Hawver refused to meet with Plaintiff. (Id. at 68:13–16.) In December
2007, Plaintiff had another meeting with HR Director Hargy, City Manager John
Hagood, and Union President Hodgins, during which Plaintiff recounted everything that
had happened to her up until that time. (Id. at 68:6–24, 72:3–6.) At that meeting, when
Plaintiff asked for clarification on the no-tampon rule, HR Director Hargy and City
Manager Hagood told Plaintiff that they would have to check with the City’s attorney
about whether Plaintiff could bring tampons to work. (Id. at 70:20–23.)
At a meeting the following month, HR Director Hargy told Plaintiff, “Listen, we’re

8

at a war of the worlds right now. How can we fix this?” (Id. at 80:22–81:10.) Plaintiff told
her that sexual harassment training was needed, and HR Director Hargy responded that
it was not in the budget. (Id. at 81:11–15.)
At this point, Plaintiff was experiencing panic attacks. (Id. at 84:11–16.) Her
husband testified that her personality changed. (Doc. 157, 8:16–9:9.)
On January 16, 2008, Plaintiff was on duty when every time she entered a room,
the others would leave and slam the door. (Doc. 155, 89:13–90:9.) Plaintiff was so
distraught that she asked if she could go home early because she could not properly
carry out her duties given her emotional state. (Id. at 90:10–15.) Plaintiff testified that
Lieutenant Grace said, “Sure, after you scrub the toilets and make sure you get all the
urine off the wall or you’re going to do it again.” (Id. at 90:10–18.) Plaintiff then
proceeded to clean the toilets in tears while the other firemen on duty stood and
watched her. (Id. at 90:19–21.)
That same day, based on Deputy Chief McAllister’s representations and his
investigation of the wrongful neglect charge in relation to the bus incident, Volusia
County Medical Director Dr. Peter Springer suspended Plaintiff’s ability to work as a
paramedic until she completed three remedial requirements that Dr. Springer described
as “not onerous.” (Doc. 156, 100:12–16, 136:6–18, 137:11–16, 140:16–141:4.) Plaintiff
completed two of the three requirements, but the City did not authorize Plaintiff to clear
the third requirement. (Id. at 154:13–156:4.)
Two days later, Fire Chief Hawver suspended Plaintiff indefinitely without pay
and forbade her from entering onto Fire Department premises. (Joint Ex. 8.) The
indefinite suspension noted that a minimum requirement for working as a firefighter is
EMT Certification. (See Joint Ex. 8.)

9

Plaintiff was still certified to work as an EMT. (Doc. 158, 175:7–17.) However,
when she tried to present her EMT license to get back on active duty, she was not
permitted on Fire Department premises to do so (id. at 175:21–23), even though a male
firefighter who had been suspended and ultimately terminated was permitted on Fire
Department premises. (Doc. 155, 88:14–89:4; Doc. 156, 94:22–95:11.) Plaintiff
eventually provided copies of her EMT license to Union President Hodgins and HR
Director Hargy and sent a letter to the Fire Department chiefs about her EMT status, but
she was not permitted to return to work as an EMT. (Doc. 158, 175:24–176:5.)
On January 31, 2008, Fire Chief Hawver recommended Plaintiff’s termination to
City Manager Hagood. (See Joint Ex. 8.) Plaintiff was ultimately terminated. (See, e.g.,
Doc. 155, 98:4–8.)
After a six-day trial, a jury returned a verdict in favor of Plaintiff on all of her
claims. (Doc. 134.) The jury awarded Plaintiff compensatory damages in the amounts of
$244,000 for back pay and $200,000 for pain and suffering. (Id.) The Court also granted
Plaintiff’s post-verdict request for reinstatement and ordered antidiscrimination training.
(Doc. 183.) The City moved for judgment as a matter of law10 or for a new trial and
appealed the final judgment. (Docs. 196, 198.) Plaintiff opposed. (Doc. 207.)

10

Though the City moved for judgment as a matter of law under Rule 50(a) at the
close of Plaintiff’s case-in-chief (Doc. 157, pp. 48–62), the Court considers the entire
record on this renewed Rule 50(b) motion. See Johnson Enters. of Jacksonville, Inc. v.
FPL Grp., Inc., 162 F.3d 1290, 1305 n.31 (11th Cir. 1998); see also Jacobs v. Penn.
Dep’t of Corr., No. 04-1366, 2009 WL 3055324, at *3–4 (W.D. Pa. Sept. 21, 2009)
(explaining why the court considers the entire record). Even if the Court did not consider
the entire record, the Court’s conclusion would not change. The result would be the
same without the evidence presented during the City’s case or Plaintiff’s rebuttal (which
consisted only of the Cosmopolitan-covered manual incident and the City’s refusal to
allow Plaintiff to work as an EMT following her indefinite suspension).

10

STANDARDS
1. Judgment as a Matter of Law
A court may enter judgment as a matter of law when there is no legally sufficient
evidentiary basis for a reasonable jury to find for a party on an issue. Fed. R. Civ.
P. 50(a); Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir. 2005). “[I]f
there is a substantial conflict in the evidence, such that reasonable and fair-minded
persons in the exercise of impartial judgment might reach different conclusions, the
motion must be denied.” Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006)
(citation and internal quotation marks omitted). The court may not weigh the evidence or
decide the credibility of the witnesses and must view the evidence in the light most
favorable to the nonmoving party. Mich. Millers Mut. Ins. Corp. v. Benfield, 140 F.3d
915, 921 (11th Cir. 1998).
Under Federal Rule of Civil Procedure 50(a), a party may move for judgment as
a matter of law before the case is submitted to the jury. “The motion must specify the
judgment sought and the law and facts that entitle the movant to the judgment.” Fed. R.
Civ. P. 50(a)(2). Under Rule 50(b), “a party may renew consideration of issues initially
raised in a pre-verdict motion for judgment as a matter of law.” Warfield v. Stewart, 434
F. App’x 777, 780 (11th Cir. 2011) (quoting Caban-Wheeler v. Elsea, 71 F.3d 837, 842
(11th Cir. 1996)) (internal quotation marks omitted). However, because each party has a
Seventh Amendment right to cure evidentiary deficiencies before her case goes to the
jury, “a party cannot assert grounds in the renewed motion that it did not raise in the
earlier motion.” Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1245 (11th Cir.
2001); Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998).

11

2. New Trial
Federal Rule of Civil Procedure 50(b) allows a party moving for judgment as a
matter of law to move alternatively for a new trial. The court may grant a new trial “for
any reason for which a new trial has heretofore been granted in an action at law in
federal court.” Fed. R. Civ. P. 59(a)(1)(A). “A trial judge may grant a motion for a new
trial if he believes the verdict rendered by the jury to be contrary to the great weight of
the evidence.” Watts v. Great Atl. & Pac. Tea Co., 842 F.2d 307, 310 (11th Cir. 1988)
(citation omitted). On a motion for a new trial, the judge may weigh the evidence.
Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982) (citations omitted).
DISCUSSION
1. Judgment as a Matter of Law
Title VII provides that it is unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). Discrimination can take the form of either: (1) a
discriminatory, tangible employment action; or (2) a hostile work environment that
changes an employee’s terms and conditions of employment. Reeves v. C.H. Robinson
Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010). Additionally, Title VII provides that
it is unlawful for an employer “to discriminate against [an employee] . . . because [the
employee] has opposed any practice made an unlawful employment practice by this
subchapter . . . or because he has made a charge . . . under this subchapter.” 42 U.S.C.
§ 2000e-3(a). The City argues that there was no legally sufficient evidentiary basis for a
reasonable jury to find for Plaintiff on her disparate treatment, hostile work environment,
or retaliation claims. (Doc. 196, p. 2.)

12

a. Disparate Treatment
The City argues that the only actionable adverse employment actions are
Plaintiff’s suspension for the profanity incident, her suspension for the bus incident, and
her termination. (Id. at 7–10.) The City contends that for each of these adverse
employment actions: (1) the decisionmaker imposing the adverse action lacked
discriminatory animus; (2) no similarly situated comparator exists; and (3) Plaintiff failed
to present sufficient evidence that the City’s articulated reasons were pretexual. (Id.)
Assuming arguendo that these are the only adverse employment actions that could give
rise to a finding of disparate treatment, the Court nevertheless finds that Plaintiff
presented sufficient evidence for a reasonable jury to conclude that she was subject to
unlawful disparate treatment.
A plaintiff may prove a disparate treatment claim with circumstantial evidence, by
presenting evidence: (1) sufficient to allow a jury to reasonably draw an inference of
intentional discrimination; or (2) that meets the burden-shifting framework of McDonnell
Douglas. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir.
2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).
Plaintiff presented circumstantial evidence that would satisfy either test. As for
drawing a reasonable inference of intentional discrimination, Fire Chief Hawver acted as
the decisionmaker, as he ultimately suspended Plaintiff for both the profanity11 and bus
incidents based on the results of investigations performed by Battalion Chief Coats.
(Doc. 155, 60:17–24.) Given Fire Chief Hawver’s statements during the hiring process,
11

Plaintiff’s suspension for the profanity incident was ultimately reduced from
leave without pay to mandatory personal leave, which still caused Plaintiff to lose
compensation. (Def. Ex. 62; Doc. 155, 70:13–15).

13

and given the fact that he expressed displeasure with Plaintiff’s pregnancy within mere
months of the adverse employment actions (Doc. 154, 188:18–21, 189:4–6; Doc. 155,
12:12–15, 13:6–11), the Court finds that the jury had a sufficient evidentiary basis to
conclude that the suspensions were the result of Fire Chief Hawver’s intentional
discrimination.
Even if the jury did not have a sufficient evidentiary basis to discern intentional
discrimination on Fire Chief Hawver’s part—which the Court concludes that it did—the
jury also had a sufficient basis to conclude that Battalion Chief Coats intentionally
discriminated. Under the cat’s paw theory, “if a supervisor performs an act motivated by
. . . animus that is intended by the supervisor to create an adverse employment action,
and if that act is a proximate cause of the ultimate employment action, then the
employer is liable . . . .” Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011); see also
King v. Volunteers of N. Ala., Inc., 502 F. App’x 823, 828–29 (11th Cir. 2012) (applying
Staub in the Title VII context). Where a decisionmaker other than the discriminatory
supervisor imposed the adverse employment action, the employer is still liable if that
decisionmaker relied on the supervisor’s biased recommendation and did not
independently determine that the adverse action was entirely justified. Staub, 131 S. Ct.
at 1193. Battalion Chief Coats explicitly told Plaintiff that he did not believe that women
belonged in the fire service, made comments about women not being able to pull the
same weight as men, and frequently ignored Plaintiff while interacting with men
normally. (Doc. 154, 197:17–20, 199:12–20; Doc. 156, 197:1–4.) Under Staub, the jury
could have reasonably inferred that the suspensions were the result of Battalion Chief
Coats’s intentional discrimination, that Fire Chief Hawver did not independently
investigate the profanity and bus incidents, and therefore that Plaintiff suffered unlawful

14

disparate treatment.
Alternatively, the jury could have reached the same conclusion under the
McDonnell Douglas framework, which provides that a plaintiff makes out a prima facie
case of discrimination if she shows that: (1) she belongs to a protected class; (2) she
suffered an adverse employment action; (3) her employer treated her less favorably
than other similarly situated individuals outside of her protected class; and (4) she was
qualified for her job. See McDonnell Douglas, 411 U.S. at 802; see also Marshall v.
Mayor Alderman, 366 F. App’x 91, 98 (11th Cir. 2010). When a plaintiff establishes a
prima facie case of discrimination, it creates a rebuttable presumption that the employer
acted illegally. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).
The defendant can rebut that presumption with legitimate reasons for its action, and the
plaintiff must then show that the proffered reasons were pretextual. Id. The City
contends that Plaintiff failed to present sufficient evidence that there was a similarly
situated comparator or that the City’s articulated reasons for the adverse actions were
pretextual. (Doc. 196, pp. 7–10.)
Plaintiff presented sufficient evidence that she was treated differently from
similarly situated male comparators in regard to the profanity incident. There was ample
testimony that everyone in the Fire Department curses on a regular basis. (Doc. 155,
26:21–27:18; Doc. 156, 42:8–10, 62:2–16, 203:1–5.) While the City contends that
Plaintiff was disciplined not for mere cursing, but for cursing at the Fire Department
administration, whether Plaintiff directed her profanity at the administration was a
question for the factfinder. (See Doc. 71, p. 6.) The jury was therefore entitled to draw
the conclusion that Plaintiff cursed only at Driver/Engineer Kirsch individually. Thus,
every male in the Fire Department who curses is a similarly situated comparator. See

15

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
The City contends that it took the adverse actions because Plaintiff violated City
policy, but the Court finds that Plaintiff presented sufficient evidence that this
justification was pretextual. As previously discussed, a reasonable jury could have
inferred gender animus on Fire Chief Hawver’s part, thereby overcoming the City’s
proffered justification. Alternatively, given that Fire Chief Hawver suspended Plaintiff
based on Battalion Chief Coats’s investigation, the cat’s paw analysis also satisfies the
pretext requirement. See Dombrowski v. Lumpkin Cnty., No. 2:11-CV-0276-RWS-JCF,
2013 WL 2099137, at *11 (N.D. Ga. Mar. 21, 2013) (applying the cat’s paw theory in a
Title VII sex discrimination case to the pretext consideration of the McDonnell Douglas
framework); Curtis v. Teletech Customer Care Mgmt. (Telecomms.), Inc., 208 F. Supp.
2d 1231, 1242–43 (N.D. Ala. 2002) (same in a Title VII race discrimination case).
Additionally, Lieutenant Ofide—who reported Plaintiff’s cursing—had recently told
Plaintiff, “Ladies shouldn’t talk like that” when she cursed in front of him on another
occasion. (Doc. 155, 16:17–23.) The sum of the comments and conduct evincing
general antipathy toward women in the workplace also supports a finding of pretext.
Thus, the jury had sufficient evidence from which to conclude that the City’s proffered
reasons for the adverse actions were pretextual.
The Court therefore concludes that the jury had a sufficient evidentiary basis to
conclude that Plaintiff suffered an unlawful adverse employment action. The motion for
judgment as a matter of law is therefore due to be denied as to the disparate treatment
claim.
b. Hostile Work Environment
At the outset, the Court notes that this case is not a paradigmatic sex-based

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hostile work environment claim predicated on sexual harassment. Rather, Plaintiff’s
hostile work environment claim is primarily premised on a hostility toward the presence
of women in the workplace. To prove a hostile work environment, a plaintiff must show:
(1) that she is a member of a protected class; (2) that she was subject to unwelcome
conduct; (3) that the conduct was based on her sex; (4) that the conduct was sufficiently
severe or pervasive to alter the terms and conditions of her employment and create an
abusive working environment; and (5) a basis for holding her employer liable. C.H.
Robinson, 594 F.3d at 808. The City argues that the jury did not have a sufficient
evidentiary basis to conclude that the conduct to which Plaintiff was subjected was
based on her gender or was sufficiently severe or pervasive to rise to the level of a
hostile work environment. (Doc. 157, 55:3–8, 55:18–56:2; Doc. 196, pp. 11–15.)
i. Based on Gender
Much of the unwelcome conduct to which Plaintiff was exposed was overtly
gender-based, and under the Rule 50 standard, the Court must defer to the jury’s
inference that other accompanying conduct was gender-based as well. From the
beginning of her employment, various actors from all levels of the Fire Department told
Plaintiff in one way or another that women did not belong in the fire service. (Doc. 154,
188:18–21, 189:4–6, 197:17–20, 198:13–15.) Upon her arrival, Plaintiff’s Standard
Operating Procedures manual was covered with a Cosmopolitan magazine cover.
(Doc. 158, 175:15–176:5; Pl. Ex. 5.) Plaintiff was called a “split tail.” (Doc. 155, 59:7–8.)
She experienced sexual harassment when another firefighter sent her pornographic
videos, invited her to a swingers’ party, and told her, “Oh, I’d like to bend you over.”
(Doc. 154, 241:13–19, 242:15–20; Doc. 156, 19:5–6.) Plaintiff was asked multiple times
when she would get pregnant and was told that she should get pregnant so that she

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could work as a secretary. (Doc. 155, 12:12–18; Doc. 157, 9:19–25.) When Plaintiff
cursed, she was told, “Ladies shouldn’t talk like that.” (Doc. 155, 16:17–23.) A lieutenant
refused to work with Plaintiff and another female firefighter together. (Id. at 56:10–22.)
The Fire Department instituted a rule forbidding “girly” magazines and tampons. (Id. at
61:14–62:25.) These comments and actions are all explicitly gender-based.
Additionally, the jury was entitled to infer that other unwelcome conduct was
based on gender. See Mich. Millers Mut. Ins. Corp., 140 F.3d at 921. The City contends
that “[d]iscipline issued for policy infractions does not expose members of one sex to
disadvantaged terms or conditions of employment to which members of the other sex
are not exposed.” (Doc. 196, p. 15.) It is true that the jury could have concluded that
Plaintiff was subject to various investigations, inequitable discipline, and scheduling
changes because she broke the rules or because of personality conflicts. However, the
jury was equally entitled to believe that her treatment stemmed from her gender—
especially when presented with evidence that men who committed the same alleged
policy infractions were not investigated or disciplined and that the scheduling changes
took place immediately after Plaintiff became pregnant, when Plaintiff was assigned to
work with another woman, and in conjunction with the no-tampon rule. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (“[A]lthough the court
should review the record as a whole, it must disregard all evidence favorable to the
moving party that the jury is not required to believe.”); Marsh v. Ill. Cent. R.R. Co., 175
F.2d 498, 500 (5th Cir. 1949) (stating that a Rule 50 motion “raises a question of law
only: Whether there is any evidence which, if believed, would authorize a verdict against
movant”). Thus, based on both explicitly and contextually gender-discriminatory
conduct, the jury had a sufficient evidentiary basis to conclude that the unwelcome

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conduct to which Plaintiff was subjected was based on her gender.
ii. Severe and Pervasive
“Either severity or pervasiveness is sufficient to establish a violation of Title VII.”
C.H. Robinson, 594 F.3d at 808 (citation omitted). The Court may consider: (1) “the
frequency of the discriminatory conduct”; (2) “its severity”; (3) “whether it is physically
threatening or humiliating, or a mere offensive utterance”; and (4) “whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993). The conduct must be both objectively and subjectively
hostile. Id. at 21–22. Objective hostility involves “an environment that a reasonable
person would find hostile or abusive.” Id. at 21. “[T]he evidence of harassment is
considered cumulatively and in the totality of the circumstances” and must be
approached with “an appropriate sensitivity to social context.” C.H. Robinson, 594 F.3d
798, 807–08 (citations and internal quotation marks omitted); see also Dar Dar v.
Associated Outdoor Club, Inc., 201 F. App’x 718, 722 (11th Cir. 2006) (“Breaking the
alleged harassing conduct down act-by-act and then concluding that each act is
‘isolated’ is a bit like executing a self-fulfilling prophecy; every act viewed individually
appears isolated.”).
A reasonable jury could have concluded that the unwelcome conduct directed at
Plaintiff intolerably altered her working environment. While the U.S. Court of Appeals for
the Eleventh Circuit has set a high bar for the frequency prong, see, e.g., Mitchell v.
Pope, 189 F. App’x 911, 913–14 (11th Cir. 2006) (affirming summary judgment for
employer where sixteen instances of offensive conduct took place over four years,
though some conduct was not sex-based and many instances were merely “offensive
utterances”), the inquiry “is not, and by its nature cannot be, a mathematically precise

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test.” Harris, 510 U.S. at 22. Here, the unwelcome conduct took place over the course
of nearly five years. However, it escalated beginning in August 2007 when Plaintiff
became pregnant. At that point, Plaintiff was denied overtime and moved to a station
where she could not work out of class while unqualified men worked out of class in her
place. (Doc. 155, 13:23–14:8, 14:12–15:6.) She was written up, investigated, and
ultimately disciplined for the profanity and bus incidents—even though men in the Fire
Department regularly curse and have never been disciplined and even though Plaintiff
was the one in charge of making medical decisions at the scene of the bus accident.
(Doc. 155, 24:23–25:11, 26:21–27:18, 51:1–5; Doc. 156, 42:8–10, 62:2–16, 145:4–
146:6, 164:10–165:9, 203:1–5.) A lieutenant refused to work with “two girls.” (Doc. 155,
56:10–22.) Plaintiff was then moved to another fire station, told that she had a “big
target” on her back, and informed that new rules would be put in place, namely, that she
could not have “girly” magazines and was not allowed to bring tampons to work.
(Doc. 155, 61:14–62:25, 63:6–9, 64:21–22.) A second investigation into the bus incident
was opened against her. (Id. at 65:5–11.) When Plaintiff asked to leave work because of
her distress, she was forced to scrub the toilets while the men watched her. (Id. at
90:10–21.) Plaintiff’s ability to work as a paramedic was revoked, she was suspended
indefinitely, and when she tried to present her EMT license to get back on active duty,
she was not permitted on Fire Department premises to do so, even though men who
had been suspended were permitted on the premises. (Joint Ex. 8; Doc. 155, 88:14–
89:4; Doc. 156, 94:22–95:11; Doc. 158, 175:21–23.) She was ultimately terminated.
(Joint Ex. 8; Doc. 155, 98:4–8.) These escalating incidents over the last few months of
Plaintiff’s employment support a finding of sufficient frequency. See Jones v. UPS
Ground Freight, 683 F.3d 1283, 1303–04 (11th Cir. 2012) (discussing how the

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escalation of incidents toward the end of plaintiff’s employment created a question of
fact on the issue of severity and pervasiveness).
Furthermore, the unwelcome conduct was both humiliating and directed at
undermining Plaintiff’s competence to perform her duties. The discrimination did not just
involve gender-derogatory comments and sexual harassment,12 though there were a
number of those incidents. It was also predicated on humiliating ad hoc “rules” such as
not being allowed to bring tampons into her workplace and having to change her
tampons in her car, and requiring Plaintiff to scrub toilets—including “get[ting] all the
urine off the wall” while the men watched her—before she could leave work due to
emotional distress from the hostility. (Doc. 155, 61:14–62:25, 89:13–90:21.) Further,
from the time that Plaintiff arrived at the Fire Department and was blatantly told that
women did not belong in the fire service, to the end of her tenure when a lieutenant
openly refused to work with her because of her gender, her competence and ability to
perform as a firefighter were constantly undermined. This culminated in a series of
escalating investigations and inequitable disciplinary actions, which the jury reasonably
could have inferred were based on false pretenses. Cf. O’Rourke v. City of Providence,
235 F.3d 713, 730 (1st Cir. 2001) (noting that incidents of “work sabotage, exclusion,
denial of support, and humiliation” can contribute to a hostile work environment). The
12

The cases on which the City relies (Doc. 196, pp. 11–15) mostly deal with
insufficiently severe or pervasive sexual harassment, see, e.g., Leeth v. Tyson Foods,
Inc., 449 F. App’x 849 (11th Cir. 2011), which is not the centerpiece of Plaintiff’s hostile
work environment claim, or are inapposite for other reasons, see, e.g., Guthrie v. Waffle
House, Inc., 460 F. App’x 803, 807 (11th Cir. 2012) (finding that plaintiff did not
subjectively perceive the harassment to be sufficiently severe or pervasive); Thompson
v. Carrier Corp., 358 F. App’x 109, 114 (11th Cir. 2009) (stating that plaintiff
acknowledged that the harassment was not based on a protected characteristic but
stemmed from her tendency to fall asleep on the job and litigation she pursued against
a former employer).

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propagation of gender-based skepticism as to the competence of a female firefighter in
an overwhelmingly male occupation, and the repeated undermining of her abilities to
perform acts as rote as washing a fire truck and as fundamental as triaging patients,
interferes with work performance and goes to the core of her terms and conditions of
employment. See Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 326 (5th Cir.
2004) (adding “whether the complained-of conduct undermines the plaintiff's workplace
competence” as a fifth factor in weighing severity and pervasiveness); Howley v. Town
of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (concluding that a female firefighter
presented sufficient evidence to withstand summary judgment based in part on genderderogatory comments that undermined her competence as a commanding officer); Vicki
Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683, 1769 (1998) (“[A]
core component of [hostile work environment] harassment is conduct designed to
undermine a woman's competence; the harassment does not always consist of sexual
advances or other sexually oriented conduct.”).
“Keeping in mind that each successive episode has its predecessors, that the
impact of the separate incidents may accumulate, and that the work environment
created thereby may exceed the sum of the individual episodes,” Robinson v.
Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991), this Court finds
that the jury had sufficient evidence to conclude that the hostile work environment was
sufficiently severe or pervasive. Plaintiff subjectively understood the terms and
conditions of her employment to have been altered, as evidenced by her emotional
breakdown and panic attacks (Doc. 155, 66:16–67:4; 84:11–16), and a reasonable
person in Plaintiff’s position would have felt the same way. Thus, the Court cannot
conclude as a matter of law that no reasonable jury could view Plaintiff’s treatment as

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severe or pervasive enough to alter the terms and conditions of her employment. The
motion for judgment as a matter of law is therefore due to be denied as to the hostile
work environment claim.
c. Retaliation
Under 42 U.S.C. § 2000e-3(a), there are two types of statutorily protected activity
that may form the basis of a retaliation claim: (1) activity stemming from the participation
clause of the statute, which protects an employee who “has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under
this subchapter”; and (2) activity stemming from the opposition clause, which protects
an employee who “has opposed any practice made an unlawful employment practice by
this subchapter.” In its Rule 50(a) motion, the City challenged Plaintiff’s retaliation claim
on the ground that her protected activity was not protected by the participation clause.
(Doc. 157, 56:6–25.) In its Rule 50(b) motion, in addition to that issue, the City argued
that under the opposition clause, Plaintiff failed to present evidence supporting a causal
connection between her protected activity and the adverse employment action taken
against her. (Doc. 196, pp. 15–18.)
Plaintiff presented her retaliation claim pursuant to Title VII’s opposition clause by
presenting evidence that she complained to the City’s management and personnel
about harassment based on her gender. See Weeks v. Harden Mfg. Corp., 291 F.3d
1307, 1311–12 (11th Cir. 2002) (stating that good faith, reasonable complaints that an
employer was engaged in an unlawful employment practice are protected under the
opposition clause). The City’s participation clause argument is therefore unavailing.
Further, because the City did not raise the opposition clause issue in its Rule 50(a)
motion, it is waived. See Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1245

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(11th Cir. 2001).
Even if this argument were not waived, it would still fail. The U.S. Supreme Court
recently held that a plaintiff making a retaliation claim must establish that her protected
activity was a but-for cause of the adverse employment action.13 Nassar, 133 S. Ct. at
2534. A plaintiff can prove a but-for causal relationship through a “close temporal
proximity” between the time her employer learned about her protected activity and the
adverse action. Raspanti v. Four Amigos Travel, Inc., 266 F. App’x 820, 823 (11th Cir.
2008) (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007))
(explaining the but-for standard in an FLSA retaliation case). A three-month time span,
“without more,” is not close enough to demonstrate temporal proximity. Cooper Lighting,
506 F.3d at 1364 (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
Here, Plaintiff made multiple complaints to HR Director Hargy from August 2007
to January 2008 about the hostile work environment. (Doc. 155, 58:13–16, 66:20–68:1,
80:22–81:15.) This was the same period in which the investigations and disciplinary
actions against Plaintiff escalated. In October 2007, Plaintiff was told that she had a “big
target” on her back. (Doc. 155, 61:14–62:25.) Fire Chief Hawver suspended Plaintiff
indefinitely without pay on January 18, 2008, and recommended her termination on
January 31, 2008. See Joint Ex. 8. The Court concludes that the jury had a sufficient
evidentiary basis from which to conclude that Plaintiff’s complaints were a but-for cause
of the adverse employment actions given the temporal proximity between Plaintiff’s
multiple complaints and her suspensions and termination, the comment that she had a
13

This appears to be a higher standard than that previously employed by the
Eleventh Circuit. See, e.g., Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457
(11th Cir. 1998) (requiring that the protected activity and the adverse action be “not
completely unrelated”).

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“big target” on her back, and the escalating nature of the investigations and discipline as
Plaintiff continued to make complaints. The motion for judgment as a matter of law as to
the retaliation claim is therefore due to be denied.
2. New Trial
The Court may grant a new trial on an issue “for any reason for which a new trial
has heretofore been granted in an action at law in federal court.” Fed. R. Civ.
P. 59(a)(1)(A). The City moves for a new trial on three grounds: (1) the verdict is against
the great weight of the evidence; (2) the Court’s exclusion of the arbitration award was
improper; and (3) an intervening change in the law has occurred, in that retaliation now
requires but-for causation and the jury was improperly instructed on this requirement.
(Doc. 196, pp. 18–22.) The Court concludes that a new trial is not warranted.
First, the verdict in favor of Plaintiff was not against the great weight of the
evidence. This case involved highly disputed questions of fact. The jury had to
determine, among other things, whether Plaintiff’s cursing was directed at the Fire
Department administration or an individual; whether Plaintiff was subject to various
gender-disparaging comments and conduct; whether Plaintiff was disciplined where
men were not because of her gender, because she broke the rules, or because of
personality conflicts; and whether Plaintiff was suspended and terminated because she
complained or because of poor performance. In light of the highly disputed facts, and in
the absence of any complicated issues or pernicious events during trial, the Court
cannot say that the verdict was against the great weight of the evidence. See Williams
v. City of Valdosta, 689 F.2d 964, 974 (11th Cir. 1982). Rather, the jury reasonably
resolved the factual issues in Plaintiff’s favor. Thus, the Court concludes that the verdict
is not contrary to the greater weight of the evidence.

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Second, the Court properly excluded the arbitration decision. An “arbitral decision
may be admitted as evidence and accorded such weight as the court deems
appropriate.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974). Courts have
interpreted this language to mean that a district court is not required to admit an
arbitration decision. See, e.g., Jackson v. Bunge Corp., 40 F.3d 239, 246 (7th Cir. 1994)
(“[T]here is no requirement that the court must allow an arbitration decision to be
admitted at all.” (citation omitted)). The Court excluded the arbitration proceeding out of
concern that it would have “the imprimatur of being a judicial determination or a quasijudicial determination of Title VII issues” (Doc. 155, 6:5–9) and that the jury would weigh
its significance more heavily than other evidence. See Bunge Corp., 40 F.3d at 246
(affirming a district court’s exclusion of an arbitration decision based on the risk that “the
arbitrator’s decision and rationale would be substituted for the jury’s decision”).
Additionally, though the collective bargaining agreement included a nondiscrimination
provision (see Doc. 49-5, p. 5), that provision was not considered by the arbitrator (see
Doc. 49-33, pp. 14–16). Cf. Alexander, 415 U.S. at 60 n.21 (noting that relevant factors
regarding the weight to be accorded an arbitral decision include the “adequacy of the
record with respect to the issue of discrimination” and “existence of provisions in the
collective-bargaining agreement that conform substantially with Title VII”). Thus, the
arbitration decision was properly excluded under Federal Rule of Evidence 403.
Finally, the jury was correctly instructed on the causation element of Plaintiff’s
retaliation claim. The Court instructed the jury that “[f]or an adverse employment action
to be ‘causally related’ to statutorily protected activities it must be shown that, but for the
protected activity, the adverse employment action would not have occurred.” (Doc. 133,
p. 10.) Thus, the jury was properly instructed on this point. As all of the City’s arguments

26

are unavailing, the motion for a new trial is denied.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant, City of
New Smyrna Beach’s Motion for Judgment as a Matter of Law or, in the Alternative,
Defendant’s Motion for New Trial and Incorporated Memorandum of Law (Doc. 196) is
DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on September 16,
2013.

Copies:
Counsel of Record

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