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Denial of properly-fitting
protective gear for female firefighters rises to the level of an adverse
employment action.
Wedow v. City of Kansas
City, Mo., 442 F.3d 661 (8th Cir. March 24, 2006) - This is a Title VII sex
discrimination action alleging unequal treatment based on sex and
retaliation. This is the second employment discrimination action brought by
Anne Wedow and Kathleen Kline against the Kansas City Fire Department
(hereinafter, the "City"). After the first lawsuit, both women were promoted
to the position of battalion chief. With respect to their sex discrimination
claims in this lawsuit, both women are complaining about the fact that the
protective firefighting clothing they are provided does not fit properly
because the clothing is made for men -- even though there is available for
purchase protective clothing made for women. They also complain about the
bathroom and shower facilities for females at the fire stations. With
respect to their retaliation claims, the plaintiffs allege that they were
not provided opportunities to work in "shift designation" positions. These
designations allow the designee to oversee particular subject matter
functions that arise during the shift. They do not entitle a firefighter to
any extra pay, but they do provided on-the-job experience that is critical
to career advancement. Male battalion chiefs and males of lesser rank
received shift designation opportunities. Also, Kline alleges that she was
denied opportunities to work "out of class," which means temporarily
assuming the duties of higher ranking officials. At separate trials, juries
found in favor of Wedow and Kline. On appeal, the City argues that the
plaintiffs' discrimination claims are barred by res judicata or collateral
estoppel because the claims either were brought or could have been brought
in the first lawsuit brought by the plaintiffs. The Eighth Circuit
disagrees. In the first lawsuit, the plaintiffs sought to introduce this
evidence as part of a hostile work environment. In the current action, they
are claiming disparate treatment. Also, they are suing over a later time
frame than the first lawsuit. Next, the City argues that the disparate
treatment claims are barred by the statute of limitations because Wedow and
Kline were aware of the claims for clothing and facilities since at least
January 1990 and they did not file their EEOC charge until November 1997.
But the Court disagrees. It holds that each time a female firefighter is
required to don inadequately fitting protective clothing to combat a fire
or to serve a 24-hour shift without adequate restroom and shower facilities
due to discrimination on account of sex, a separate Title VII violation
occurs. Therefore, the plaintiffs could sue for all such violations within
300 days of the filing of their EEOC charges. With respect to the merits of
the disparate treatment claims, the Court finds that being required to work
as a firefighter with inadequate protective clothing and inadequate restroom
and shower facilities is an adverse employment action. The Court also finds
sufficient evidence that the plaintiffs were subjected to these adverse
employment actions based on their sex. Next, with respect to the retaliation
claims, the Court first addresses whether the plaintiffs have exhausted
their administrative remedies as to these claims because the EEOC charges
were filed in November 1997 and the alleged retaliatory acts occurred
between 1998 and 2000. The Court acknowledges that the Eighth Circuit has
considerably narrowed its view of what constitutes "like or reasonably
related" to the originally filed EEOC allegations. But the EEOC charges
filed by the plaintiffs alleged "ongoing and continuing" retaliation. The
Court holds that a reasonable EEOC investigation of alleged "ongoing and
continuing" retaliation in this case would certainly have focused on whether
or not the retaliation alleged was in fact existent at the time of the
filing of the charges and if it did indeed continued to exist at the time of
the investigation. Therefore, the plaintiffs adequately exhausted their
administrative remedies as to the retaliation claims. With respect to the
merits of the retaliation claims, the Court finds sufficient evidence to
support the jury verdicts that they were essentially denied on-the-job
training opportunities because they engaged in protected activity. Finally,
on cross-appeal, Kline asserts that the district court abused its discretion
by denying her request for equitable relief in which she sought an
injunction requiring an immediate cure for the facilities violations. The
City presented the district court with a detailed plan to upgrade the
facilities over a period of fifteen years. Also, the five stations in Kline's
district had accessible female or unisex restrooms with locks on the doors.
The Eighth Circuit holds that it cannot find that the district court abused
its discretion by refusing to order an immediate cure for the facilities
violations. Click
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