By Kathleen Kapusta, J.D. Comments by a company owner that he was “very nervous” about an employee’s gender transition and the “possible ramifications,” that might “negatively impact his business,” solicited advice from an attorney regarding the need to write up her performance issues, and the imposition of discipline only after she announced her gender transition created triable fact issues as to the employer’s discriminatory intent and whether gender bias was a motivating factor in the decision to terminate her. Accordingly, the Eleventh Circuit, in an unpublished opinion, reversed in part the grant of summary judgment against the employee’s Title VII sex discrimination claim (Chavez v. Credit Nation Auto Sales, LLC, January 14, 2016, per curiam). When the employee began working as an automobile technician for Credit Nation Auto Sales, she presented as a male. When she decided a year later to go through gender transition, she met with her supervisor and Credit Nation’s vice president to inform them of her decision. Both were very supportive, as was the company’s owner and her coworkers. Tone it down. This supportive environment allegedly ended two weeks later when the VP told her to “tone things down” because her conversations about surgeries and breast augmentations were making others feel uncomfortable. Shortly thereafter, the employee received a verbal warning for making derogatory comments about a coworker. Also around that same time, the owner allegedly told her he was concerned her transition might “impact his business.” He also purportedly complained that her attire was upsetting other employees and advised her not to “wear too feminine attire … coming to work or leaving work.” She was ultimately fired after she was discovered sleeping on the job. She sued for sex discrimination under Title VII and the district court granted summary judgment to her employer. Motivating factor. The Eleventh Circuit, on appeal, agreed that the owner’s comments about the employee’s gender transition were not sufficient direct evidence of a discriminatory motive. It also found she failed to create a jury issue as to pretext because she admitted to sleeping at work and there was evidence Credit Nation fired another employee for sleeping on the job. Thus, the appeals court turned to her argument that her termination was motivated not only by a legitimate reason, but also by an impermissible reason: bias against her transgender status. Citing Section 2000e-2(m), the court explained that the employee could establish causation by showing gender bias “was a motivating factor” in her termination, “even though other factors also motivated” her discharge. No dresses. Examining the employee’s evidence, the court noted that she was hired in June 2008 and was never disciplined until she announced her gender transition on October 28, 2009. She was fired less than three months later. And while there was some evidence that the owner was initially accommodating, several weeks after the employee wrote a letter to a newspaper praising her employer’s support for her gender transition, he met with her and told her “he did not want any problems” due to her “condition” and blamed her for having lost an applicant. He also purportedly admonished her not to bring up her transition and asked her not to wear a dress back and forth to work. Further, the VP allegedly told the employee to be “very careful” because the owner “didn’t like” the implications of her transition. Attorney advice. There was also evidence suggesting Credit Nation subjected the employee to heightened scrutiny after learning about her gender transition plans and was simply looking for a legitimate reason to terminate her. Although the owner told her she was the best mechanic there, shortly after disclosing her gender transition, she was subjected to discipline for the first time. In addition, the employee pointed to an email exchange between the VP and the company’s attorney in which the VP solicited advice after the employee complained that she was not allowed to use a unisex customer bathroom that other female employees were allowed to use. In the email, the attorney stated that “tomorrow will bring more issues and I think this will get to a breaking point before very long. Just have the management focus on work and performance of required duties and the other issues should be written up one at a time.” Disciplinary process. Finally, the court noted that under the company’s disciplinary procedures policy, sleeping while on the clock on company time was not included in the list of employee behaviors that could result in immediate discharge. While the policy gave Credit Nation discretion in whether to follow each step progressively, or bypass one or more steps, the court pointed out that none of the progressive steps was followed prior to the employee’s termination. Further, said the court, “Credit Nation’s argument that there was a legitimate reason to terminate [the employee]—sleeping on the clock—misunderstands the plaintiff’s burden under § 2000e-2(m).” She did not need to show that the legitimate reason for her termination was pretextual, as she would under a McDonnell Douglas analysis. Rather, it was enough that she show that discriminatory animus existed and was at least “a motivating factor.”
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