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A federal appeals court has upheld a jury’s award of more than $1.2 million to a former lieutenant in the Philadelphia Fire Department who said he was forced out of his job after he complained of sexual harassment by men under his command who perceived him to be gay. The ruling handed down Tuesday by a unanimous three-judge panel in Bianchi v. City of Philadelphia affirms a February 2002 verdict in which Robert Bianchi was awarded $225,000 in backpay, $512,000 in front pay and $500,000 in compensatory damages for emotional distress. After the verdict, U.S. District Judge Anita B. Brody awarded more than $100,000 in fees to Bianchi’s lawyer, Andrew F. Erba of Williams, Cuker & Berezofsky. With the appellate victory, Erba said Wednesday that he will now be petitioning Brody for about $50,000 more in fees. In the appeal, lawyers for the city urged the 3rd U.S. Circuit Court of Appeals to order a new trial, arguing that Brody erred by allowing the jury to hear graphic evidence and testimony of the sexual harassment Bianchi allegedly suffered even though the harassment claim had been dismissed before the trial, which focused solely on a retaliation claim. In their brief, Deputy City Solicitors Michael Holmes and Stephen C. Miller argued that in a pure retaliation case, the plaintiff should present only the evidence of his “protected conduct,” such as the lodging of a complaint, and evidence relating to any “adverse employment action,” such as a firing or demotion, that was allegedly caused by the protected activity. They also argued that the jury’s award was excessive, and that Brody erred by allowing Bianchi to seek front pay. The appellate court rejected every argument, finding that Brody’s evidentiary rulings were sound and that she properly instructed the jury on the purpose of the evidence and cautioned the plaintiff’s lawyer not to allow the harassment evidence to “dominate” the trial. Prior to the trial, Brody had significantly trimmed Bianchi’s case by dismissing his claim for sexual harassment under Title VII but allowed him to go forward with a claim of retaliation under Title VII, a civil rights claim under Section 1983 and a due process claim. Brody found that a plaintiff like Bianchi — who claims he was sexually harassed because his co-workers mistakenly perceived him to be gay — cannot sue under Title VII unless he can also show that the mistreatment he suffered was somehow connected to his lack of conformity with stereotypes of how men and women should behave. To survive summary judgment, Brody said, such a plaintiff must have “some evidence that the discrimination he suffered resulted from his failure to match the societal ideal of manliness.” But Brody also held that since Bianchi made “good faith” complaints of sexual harassment, he was entitled to sue for any retaliation he suffered — even if the original complaints were legally invalid. According to the suit, Bianchi joined the Philadelphia Fire Department in 1977. After 17 years of service, he was promoted in 1994 to the rank of lieutenant. In March 1996, Bianchi was assigned to Ladder Company No. 2, Platoon A, at the firehouse at 4th and Arch streets, and soon began to institute changes in the discipline and training at the firehouse, some of which were not well-received by members of the company. Bianchi claims the alleged sexual harassment began within his first month of assuming command. He testified that he discovered several used condoms inside his desk drawer and began finding explicit homosexual playing cards inside his desk, his uniform and his running gear. Later, he said, he found envelopes with the return address from the Gay Firefighters Association in his desk. At first, Bianchi testified that he opted not to complain. But he said he was forced to go to his superiors when the alleged harassment continued for months. Although no official action was taken, Bianchi said that senior members of the department advised his platoon that the conduct would not be tolerated. In November 1997, Bianchi says, he grew dissatisfied and told his battalion chief that he was taking his complaints to the police, the Civil Service Commission and his union. Soon after, Bianchi says, he was removed from his post and given a job in the department’s safety office. In January 1998, the city notified Bianchi that he was removed from firefighting line duties and would be subject to physical and mental exams before he could be returned to full work. But even after he had returned to work, Bianchi claims, the alleged harassment continued. He says he received an anonymous letter smeared with feces that accused him and his twin brother, also a firefighter, of being “queers” and that read, “We hear you are back to work in a pussy job.” An investigation of the letter incident began, and investigators found that the firehouse was a “hostile environment” for Bianchi, but that none of the responsible individuals could be identified. Soon after, Bianchi took a medical leave on the advice of his doctor. Although Bianchi says he attempted to return to work, he was never reinstated. Ultimately, the city terminated him, saying he was deemed to have abandoned his job. Erba told the jury that the city effectively blamed Bianchi for the entire situation and suggested that his failure to get along well with the men under his command was the result of his own personality. “The City of Philadelphia has adopted a policy and practice that when an individual comes forward with a complaint of workplace harassment, they turn to him and they blame the victim,” Erba said in his closing argument. Bianchi was understandably angry, Erba said, because the Fire Department was failing to protect him. By taking the action it did, Erba said, the city also “stigmatized” Bianchi as a person who was unable to work. In the appeal, the city argued that Brody should have excluded the graphic evidence of the sexual harassment since it was not probative of the retaliation claim. But Erba argued that the evidence was critical to his case because the Fire Department was aware of the harassment and wanted to keep it quiet. The retaliation occurred, he said, only after Bianchi publicized it. U.S. Circuit Judge Dolores K. Sloviter agreed, saying “plaintiff’s establishment of a hostile work environment might help a jury decide whether or not the reason given for his separation was a pretext.” Sloviter, in a decision joined by Judges Jane R. Roth and Michael Chertoff, found that the harassment evidence was also “probative of the basis for Bianchi’s anger, which the city itself cites as the cause of his eventual separation.” The city’s lawyers argued that even if the evidence was properly admitted, it should have been limited to a brief summary. Sloviter disagreed, saying “a brief summary would not have been explanatory of the progression of events.” Prior to the trial, Sloviter noted, Brody had ruled that Bianchi “could present evidence of the specific incidents of harassment as relevant and important background to the claims at hand,” but specified that the evidence should not dominate the trial. Brody’s instructions were heeded, Sloviter found, saying “our review of the record indicates that the harassment evidence does not dominate the trial as the city contends.” Sloviter found that Brody also “gave careful limiting instructions” to the jury at every stage of the trial about the purpose of the harassment evidence.

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