Five female Newark fire prevention specialists failed to prove their case that they were treated poorer than male colleagues or that their work environment was gender-hostile, a federal appeals court says.
The U.S. Court of Appeals for the Third Circuit affirmed summary judgment dismissing the suit, Kimber-Anderson v. Newark, No. 11-1810, which alleged violations of New Jersey’s Law Against Discrimination and civil rights violations under 42 U.S.C. § 1983.
“Appellants are unable to meet the prima facie case threshold because they cannot demonstrate that they suffered an adverse employment action that others outside of their protected class did not suffer,” the panel said.
The plaintiffs — Meelee Kimber-Anderson, Sherri Franklin, Yedda Mason, Loretta Youngblood and Zarifa Wilson — inspect buildings to ensure compliance with fire codes. In New Jersey, fire prevention specialists must take a state-administered test to be certified for inspections of larger buildings, known as “life hazard use structures.”
The plaintiffs alleged that they were required to pay for their training before being hired, but that the city paid for training of new male employees after they were hired in 2006. They say the hiring process was corrupt and that the males were unqualified, which necessitated the plaintiffs working longer hours. They further charged that the males used city vehicles, while they had to use their own; that males were preferred for overtime opportunities; and that males were paid higher wages.
Affirming Judge Dickinson Debevoise, the panel held on Oct. 26 that the plaintiffs failed to make out a prima facie case that the actions were discriminatory on their face.
As for not paying for the plaintiffs’ certification classes, the city had a long-standing policy of paying for coursework for current employees only. “That the City would not pay for coursework taken by an individual prior to being hired does not constitute gender discrimination,” wrote Third Circuit Judge Kent Jordan in an opinion joined by Judges Theodore McKee and Thomas Vanaskie.
The judges also said the city paid the plaintiffs and most of the male were paid a stipend for the use of their personal autos. Also, the city had few usable cars and they added that the one male who did use a city-owned car was also the city’s sole hazmat inspector who had to be available at all times.
As for being required to work longer hours in order to train the new hires, Jordan said the city had a policy of pairing experienced FPSs with less-experienced ones, and that the plaintiffs had been the beneficiaries of that policy as well. The judges said they could not understand how their workload increased since the plaintiffs did not allege that their employment agreement was violated.
Jordan said in a footnote that the record indicated that one male employee was paid more. “[W]hile the basis for that employee’s higher wage has gone unexplained, the mere fact that one man happened to receive a higher salary cannot alone be the basis for a gender discrimination claim,” he said. “Proof of discriminatory motive is required, and one instance of higher pay is insufficient to infer such a motive.”
In order to sustain the hostile work environment claim, the plaintiffs had to show the defendants’ conduct was severe and pervasive. The plaintiffs argued their workload was increased because the male hires were not carrying their weight, that there was “intense animosity” and that one of the male hires was rude to the woman and twice called one of the plaintiffs a “bitch.”
“Even if it were true that relations were strained … those circumstances are insufficient to show a hostile work environment,” Jordan said.
Neither the plaintiffs’ attorney, Mark Frost, who runs a firm in Philadelphia, nor the city’s corporation counsel, Anna Pereira, were available for comment on Monday.