By Marjorie Johnson, J.D.
Though the employee was offended by the coworkers’ use of “him” or “he” after she began identifying as a female, the alleged incidents were not sufficiently severe or pervasive since they were sporadic and not “extremely serious.”
A federal court in Maryland dismissed without prejudice portions of a transgender employee’s Title VII lawsuit against a staffing agency and government contractor—which she claimed were joint employers—alleging that she was subjected to a hostile work environment and unlawfully terminated after she transitioned from male to female. The employee, who was offended by her coworkers use of the wrong pronoun to refer to her after she transitioned, and who was placed on probation and ultimately terminated after a coworker complained that he had to “walk on eggshells” around her, failed to plausibly allege a sufficiently severe or pervasive hostile work environment or that the staffing agency discharged her for discriminatory or retaliatory reasons (Milo v. CyberCore Technologies, LLC, September 17, 2019, Bennett, R.).
Identified as male when hired. CyberCore is a staffing agency that provides skilled personnel to staff government contracts. In December 2012, the employee—who at the time identified as a male named Doug—was hired by CyberCore as a senior software engineer to work on a classified government contract managed by a federal government agency and the prime contractor, Northtrop Grumman. She was the only CyberCore employee at the location and her managers were from Northrop.
Transitioned to female. In March 2013, the employee began living as a full-time female named Megan. Before her gender transition, managers from CyberCore, Northrop, and the federal government agency held a meeting where they explained to staff that the employee would be transitioning to the female sex, that she would use “she” and “her” pronouns, and that she should be treated with dignity and respect.
Troubled relations. Th employee claimed that her CyberCore supervisor subsequently told her that her skirt was too short, but when she pointed to another employee with a short skirt, he responded, “Well that doesn’t matter. She doesn’t work for me you do.” She also claimed that a coworker told her that she “hated” transgender people because her ex-husband was transgender. She reported the statement to her CyberCore supervisor and around the same time was counseled by an office manager after she had a loud contentious discussion with a male coworker.
Called wrong pronoun, subject of complaint. In September, a manager who had witnessed misgendering (referring to her with male pronouns) by two of her coworkers told her to “lay low,” because she was being targeted and would be in worse trouble if she complained. Meanwhile, one of the coworkers complained about her to HR, stating that he was “walking on eggshells” because of her request to be called by her female name and the proper pronoun.
Probation and PIP. After the coworker’s complaint, the employee was placed on a 30-day probationary period. During the meeting, which included her CyberCore supervisor and Northrop management, she explained that the coworker’s conduct was discriminatory and requested that the misgendering and poor treatment stop. A Northrop representative responded, “What you think really doesn’t matter.”
She was also placed on a Performance Improvement Plan (PIP), which stated that her “interaction with coworkers” was causing her to perform at “subpar level” and advised her to work on not complaining in public forums and treating customers and coworkers with respect. The PIP also stated that Northrop “recognizes that there are extenuating circumstances, but Megan must extend the same understanding and latitude to her coworkers that she expects for herself. The team is walking on eggshells in fear of creating a perceived slight or offense.”
Terminated. About three months later, the employee spoke to the complaining coworker again about the misgendering. She believed that around that time, the other coworker involved in the incident had a meeting with Northrop, which then requested her termination. Her CyberCore supervisor subsequently fired her but gave her a choice to take a layoff or be fired because of her “bad attitude.” The supervisor advised her to take the layoff because she would never be able to work in the Intelligence Community again if she were terminated.
Gender identity protection not addressed. Both defendants moved to dismiss the employee’s gender-based hostile work environment claim, noting that it was not “firmly established” that Title VII prohibits discrimination based on sexual orientation or gender identity. They stated that they may move to stay proceedings pending the outcome of cases granted certiorari by the Supreme Court addressing this very issue, but no motion had yet been filed. The court declined to now stay the case, cognizant that this issue would eventually need to be addressed.
No actionable HWE. Dismissing without prejudice her HWE claim, the court found that she failed to allege sufficiently severe or pervasive conduct. Rather, she described a “mere handful of incidents,” none of which were physically threatening. Though she was offended by her coworkers’ references to “him” or “he” rather than “her” or “she,” those alleged incidents were sporadic and not “extremely serious.” And only one alleged action could be attributed to CyberCore specifically—her supervisor telling her that her skirt was too short—which was certainly insufficient to support a HWE action.
No unlawful termination by staffing agency. The court also dismissed without prejudice her sex discrimination and retaliation claims against CyberCore, as there was a “dearth” of factual allegations to support her conclusory statement that the staffing agency terminated her “because of sex, sex stereotyping, gender, gender expression, and gender identity.” In particular, she claimed that Northrop requested her termination, that CyberCore gave her a choice of taking a layoff or being fired because of her “bad attitude,” that no one else was “laid off,” and that Northrop “intentionally moved [earmarked] money off the contract in order to terminate her.” Even if she plausibly alleged that Northrop requested her removal for discriminatory or retaliatory reasons, her claims against CyberCore failed.
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