Labor & Employment Law Daily Transgender employee fired for ‘bad attitude’ advances discriminatory discharge, retaliation claims
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Friday, January 17, 2020

Transgender employee fired for ‘bad attitude’ advances discriminatory discharge, retaliation claims

By Kathleen Kapusta, J.D.

Her hostile work environment claim, which was based among other things on sporadic allegations of misgendering was dismissed, however.

Although her Title VII sex-based hostile work environment claim against a staffing company and a government contractor was dismissed for a second time without prejudice—the transgender employee’s allegations of misgendering lacked specific details—her discriminatory termination claim survived the companies’ Rule 12(b)(6) motion. She plausibly alleged that the stated reason for her termination, her “bad attitude,” referred to her complaints about her coworkers’ treatment of her based on her sex, sex stereotyping, gender, and gender expression, that the contractor acted as her joint employer and made the decision to remove her from the workplace, and that the staffing agency told her it had no job openings at the time of her termination. Her retaliation claim advanced as well (Milo v. CyberCore Technologies, LLC, January 13, 2020, Gallagher, S.).

Dignity and respect. In December 2012, and with the approval of Northrop Grumman (NGC), CyberCore hired the employee, who at the time identified as a male, to be a senior software engineer at an NGC facility that housed NGC employees, employees of other NGC subcontractors, and federal agency employees. In February 2013, the employee was promoted to task leader; shortly thereafter, she began living full-time as a female. Prior to her gender transition, NGC, CyberCore, and government managers told staff on the employee’s floor that she “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.”

Misgendered. According to the employee, however, male managers and coworkers began to misgender her in order to diminish her gender and gender expression, she was criticized for wearing her heels too high and her skirts too short, she was told by one employee that she “hated transgender people,” and another worker complained to HR that he was “walking on eggshells around her because she asked to be called by her proper female name and female pronouns.”

What you think doesn’t matter. Based on that complaint, she alleged, she was placed on a 30-day performance improvement plan. When she complained that the conduct had been discriminatory and asked that the misgendering and other poor treatment stop, the federal program manager allegedly responded “What you think really doesn’t matter.”

Bad attitude. The employee also alleged that the worker who had complained was intentionally discourteous, refused to use her correct name, title, and pronoun, and made derogatory comments about her sex; that she had to be concerned every day that someone would criticize her dress, and that she was subjected daily to negative events relating to her gender. Although she stopped complaining about discriminatory treatment during the PIP, after it ended she again complained about misgendering. Not long after, she alleged, NGC’s HR manager told her she could “take a layoff” or “be fired because of her ‘bad attitude.’” He then handed her a letter from CyberCore indicating she was being laid off. No other employee was laid off at the time and CyberCore told her it had no job openings.

No stay. As an initial matter, the court noted that the employee grounded her claims on discrimination on the basis of sex in violation of Title VII. However, the court pointed out, as it noted in its September 2019 opinion dismissing without prejudice portions of her lawsuit, the question of whether Title VII prohibits discrimination on the basis of sexual orientation or gender identity is currently pending before the Supreme Court. Noting that no party as of yet has sought a formal stay of this case pending the Supreme Court’s ruling, the court explained that it would proceed as to the remaining elements of the employee’s claims while recognizing that the Supreme Court’s ruling might impact the ultimate viability of her case.

Hostile work environment. Turning to her hostile work environment claim, the court assumed without deciding that both companies qualified as her employers. She failed, however, to plead facts demonstrating sufficiently severe and pervasive conditions imputable to each company. As to CyberCore, she alleged only that her supervisor told her that her skirt was too short for the workplace, which was not enough to support a hostile work environment claim. And while she also alleged that she scrutinized her attire every day, this was not sufficiently specific, said the court.

Considering the rest of her allegations under the negligence standard because they did not involve conduct by a supervisor, the court noted that the employee identified three primary harassers: a federal government employee and two employees of other subcontractors. Not only did she fail to sufficiently allege that she reported their conduct to NGC or CyberCore, her allegations were conclusory, said the court, noting that she did not specify exactly what factual allegations she described to either company. “Without knowing what specific harassment, if any, [the employee] not only experienced, but also reported, this Court cannot ascertain whether NGC or CyberCore should have taken action to stop it.”

Nor did the complaint provide much insight into the nature or frequency of the alleged misgendering, said the court. Allegations that her coworkers began to misgender her, were discourteous toward her, and that while many did in fact use the correct name or pronoun, there were holdouts that regularly misgendered her throughout her employment lacked sufficient detail for the court to determine the nature and extent of the harassment. Accordingly, this claim was again dismissed without prejudice.

Discriminatory termination. On the other hand, the employee plausibly alleged that the stated reason for her termination—her “bad attitude”—referred to her complaints about the treatment she had received from her coworkers on the basis of her sex, sex stereotyping, gender, and gender expression. Indeed, she alleged that the PIP was issued by both companies and clearly instructed her to refrain from complaining about her coworkers’ treatment of her. Observing that she was terminated directly after she advised a coworker about his alleged misgendering of her, the court found that “NGC and Cybercore’s decision to terminate her plausibly resulted from her attempts to ‘stick up for herself’ in the face of discriminatory treatment by her coworkers.”

Joint employer. Further, noting the employee alleged that NGC requested her removal from the worksite, the court found she plausibly stated a claim that it had exclusive authority to determine who could and could not work at the jobsite and that it exhibited a high degree of control over her employment and was thus acting as a joint employer in ordering her termination. Moreover, she plausibly alleged that NGC had the authority to terminate her and that CyberCore was acting under its direction in doing so. In addition, the allegation that CyberCore told her it had no job openings at the time of her termination supported her contention that it relied on her “bad attitude.” Accordingly, this claim survived the motion to dismiss.

Retaliation. CyberCore and NGC’s reliance on her “bad attitude” also supported her retaliation claim, said the court, explaining that the “allegations could suggest that she was terminated in retaliation for her continued complaints to management and to her co-workers about discrimination.”

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