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 pay 1 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 stricken. Because we decline to put but 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,
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-heart-ed moments during this timeframe where she felt comradery with her colleagues. She explained, for ¿xample, 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.
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, Franehina and Ferro were assigned to the same rescue vehicle, with Franehina 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 Franehina served as his superior. Franehina and Ferro had nóver worked with one another prior to this point, though Franehina 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 Franehina meeting him. After arriving at the station for her shift and while pouring herself a cup of coffee, Fran-china was immediately approached by Fer-ro who, without missing a beat, asked if she was a lesbian. To repeat, this was then-very first encounter. After Franehina 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.” Franehina 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 Franehina 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 Franehina 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 Fran-china was forced to tell Ferro on multiple occasions to stop talking because she was having difficulty hearing the dispatcher’s instructions. Franehina' 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, Franehina 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 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, Franehina 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 Franehina, “My lesbian lover! How are you doing?” Nurses, doctors, patients, and patients’ families were all present in the holding room to witness this display. Franehina. testified that she was horrified and felt belittled. The other firefighters present were similarly appalled.
-Later that evening, after returning back to the station, Franehina 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 Fer-ro to leave, he refused. She asked a second time, and he refused yet again. 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 Fran-china’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.
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 McDou-gal 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 cany 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 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, Fran-china 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 Franchi-na) and exclaimed 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 A1 Horton 8 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 wheelchair 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 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, Fran-china 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 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 m 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] but 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.
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 indirectly.” The only exception to this in-junctive 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 Chiéf 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.
Franchiha’s final day as am 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 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 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 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 altex-native, 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)(l) 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.
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,
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)(l), or “to limit, segregate, or classify [her] employees ... in any way which would deprive or tend to deprive 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.,
Title VU’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 ány practice made an unlawful employment practice by this subchap-ter[.]” 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.,
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, 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.,
.And determining whether alleged instances of offensive conduct reach the requisite lével of pervasiveness and/or severity to constitute actual harassment is by no means a black-and-white 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.,
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.,
In fixing the applicable tolling time, we must keep in mind a key distinc7 tion 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 hire are easy to identify,” Nat’l R.R. Passenger Grp. v. Morgan,
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 Franehina 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.,
Both parties agree that Franehina filed her charge of discrimination with the RICHR on November. 30, 2011, As such, Franehina extended her statute of limitations-beyond the typical 180-day limit-and we therefore look to whether Franehina filed charges within 300 days of the alleged discrimination (i.e., on or after February 3, 2011). See Velázquez-Pérez,
The relevant inquiry here is whether Franehina anchored her hostile work environment claim by proving that some instance of harassment happened on or after February 3, 2011. See Nat’l R.R. Passenger Corp.,
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.,
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 McCarty’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 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 “engendering] 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.,
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 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.,
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 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,
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 Fran-china’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 [wejre 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 purpose. United States v. Murphy,
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 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,
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-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 érred 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 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.,
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 Franchi-na) 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 characteristic.” Chadwick v. WellPoint, Inc.,
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 unactionable as long as the employer employed no fathers. But see Chadwick,
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.,
The City’s position conflicts also with Title VU’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 Fran-china to make a showing that, all else being equal (the “plus” factors 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,
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,
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 Fran-china 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.
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 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,
There was also evidence that women were treated as less competent; a treatment barred by Title VII. Oncale v. Sundowner Offshore Servs. Inc.,
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,
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—spécifically as to how he conveyed to the jury what 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.,
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 requested instruction was correct as a matter of law.” Shervin,
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,
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 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 Fran-china’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,
“[F]ront pay, within the employment discrimination universe, is generally equitable in nature. It follows a fortio-ri 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,
In requesting front pay, the burden is on the plaintiff—here, Franchi-na—to present evidence in support of the award. Cf. Azimi v. Jordan’s Meats, Inc.,
(1) the plaintiffs 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 plaintiffs work and life expectancy, (6) the plaintiffs status as an at-will-employee, (7) the length of time other employees typically held the position lost, (8) the plaintiffs ability to work, (9) the plaintiffs 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.
Ogden v. Wax Works, Inc.,
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 district court did initially submit thé 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 “frpnt 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 “[Franchi-na] 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 rate.” See Barbour v. Merrill,
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 Technician, she quickly moved through the ranks and reached the level of Rescue Lieutenant (a leadership position). Furthermore, Fran-china 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. 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.,
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 presént day value is a mandatory prerequisite for an award of future earnings. See Maxfield v. Sinclair Int’l,
Moreover, we have at least once before implied that no expert testimony is needed in situations like this. In McDonald v. Federal Laboratories, Inc.,
Additionally, we have found that at least some district courts in our Circuit have assumed this rule for years. See McKeown v. Woods Hole,
And we note that over fifty years ago the Sixth Circuit explicated in Pennsylvania R. Co. v. McKinley,
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 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-this ease 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.
Notes
. 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.,
. The jury also awarded punitive damages but those were later eliminated.
. Indeed, doing so is especially necessary here where the district judge, in his discretion, imposed the equitable remedy of front pay.
.This 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,
. Ferro was, in fact, ultimately fired in 2007, but, again, was allowed to subsequently return to the Department in 2008.
. The record does not tell us how this meal preparation debacle was ever resolved.
. Call-back shifts are additional overtime shifts that firefighters in the Department may pick up for additional compensation.
. While we referred to Horton as Captain Horton previously, by this point he had been promoted to Chief.
. 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,
. It is the third element in this standard that is the primary target of the City's appeal, which we Will get into momentarily.
. 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,
. 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,
. Lieutenant 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.
. Firefighter Michael Evora also testified about the fact that he witnessed the argu■ment, 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.
. 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 nonhear-say 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,
. 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 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. LIT Card Servs., Inc.,
. 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. Cnty. Action Ass'n,
. 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.
. Though the tide may bo turning when it comes to Title VII’s protections, see Hively v. Ivy Tech Community College of Ind.,
. While 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.,
. Had the district court not made an independent award, our standard of review would be de novo rather than abuse of discretion. See DeCaro v. Hasbro, Inc.,
. 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.
. The City also fails to point us to a single case from any of our sister circuits reaching such a conclusion.
. The City suggests that because Franchina’s proposed witness list did not designate an expert to calculate the discount rate, it as- ■ sumed 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.
. We pause to note that while both parties also point us to our recent decision in Travers v. Flight Servs. & Sys., Inc.,