Labor & Employment Law Daily Transgender FedEx driver advances discrimination claims
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Monday, March 23, 2020

Transgender FedEx driver advances discrimination claims

By Wayne D. Garris Jr., J.D.

FedEx did not argue that transgender status was not protected under Title VII because it did not believe that anyone involved in the employee’s termination knew that he was transgender.

Denying FedEx Freight’s motion for summary judgment, a federal district court in Maryland held that genuine issues of fact existed as to whether the employer disciplined a transgender employee more harshly for refusing to take an extra delivery assignment. The court declined to reach the issue of whether transgender individuals are protected under Title VII, because the employer claimed that it was not aware of the employee’s transgender status; however, the employee raised a factual dispute as to whether an HR representative who was involved in his termination knew he was transgender. Furthermore, testimony from another driver that he and other drivers refused to take extra delivery assignments without facing discipline raised a genuine dispute as to whether the employee’s transgender status was the real reason for his termination (Squire v. FedEx Freight, Inc., March 12, 2020, Hollander, E.).

The employee was born female, but identified as and lived as male his entire adult life. He worked as a delivery driver in FedEx’s Annapolis Junction location. One day after finishing his scheduled deliveries, he received a text message from his supervisor to come back to the employer’s service center to take one of two additional deliveries. The employee responded that he would not take either delivery because it was too late in the day.

The employee later testified that he didn’t take the extra assignment because his hand was swollen, but he didn’t tell his manager that in the text exchange because he was driving. When he returned to the service center, the employee met with his manager and supervisor who told him that his refusal to take an extra assignment was considered insubordination. The employee did not believe that he refused work as he thought that the employer’s policy was to go up the seniority ladder to find a driver to take the extra delivery run.

Written statements. At his manager’s request, the employee provided a handwritten statement about his refusal to take the extra assignment. The statement does not reference his swollen hand. In the statement, the employee stated: ‘Every [sic] since I’ve been here people have been refusing work & they would ask the next person.’ The employee also provided a typewritten statement in which he stated that he told his manager and supervisor that he declined the extra assignments because his hand was swollen and because he thought the extra jobs were seniority-based. He also stated that he thought the request was a general question, not an order.

Termination. After the employee completed his statements, his manager told him that he was suspended and “not to show up for work the following day until notified.” The employee was later terminated for insubordination. He filed suit under the Maryland Fair Employment Practices Act (MFEPA), alleging that the discipline he received for refusing the assignment was harsher than discipline given to other drivers who refused assignments because his manager knew that he was transgender.

Protected status. The MFEPA is an analogue to Title VII, so the court analyzed the employee’s claim under Title VII precedent. The question of whether transgender individuals are a protected class under Title VII is pending before the Supreme Court, however the Supreme Court has held in Price Waterhouse v. Hopkins that Title VII prohibits sex stereotyping. Several circuits have extended the holding in Price Waterhouse to protect transgender Title VII plaintiffs. The court noted that the Fourth Circuit has not applied Price Waterhouse in a reported decision in a Title VII claim brought by a transgender employee; and the court declined to decide the issue because FedEx did not contest the employee’s membership in a protected class.

Knowledge of transgender status. The employer asserted that no one involved in the employee’s termination knew that he is transgender. The employee disputed the employer’s argument claiming that he provided his manager with paperwork explaining that the reason for previous medical leave was a hysterectomy. The employee also provided proof of a message from an HR representative telling him that he needed a new physical with his medical release, that his surgery would have be listed on the release, and that a copy of the document would have to be provide to his manager. The employee also submitted a letter from a gynecologist that he submitted to the employer.

The employer argued that the mere fact that the employee received treatment from a gynecologist did not establish that his manager had knowledge of his transgender status. The employer also presented evidence that gynecologists now see male patients, but the court was not persuaded. The court concluded that it could not conclude, in the light most favorable to the employee, that the HR representative was not aware of the employee’s transgender status.

Comparators. The employee didn’t present evidence of specific comparators but offered the testimony of another driver who stated that he had refused assignments and had not been disciplined. Further, the driver testified that he was aware of other drivers who had refused assignments, but to his knowledge, the employee was the only driver who had ever been disciplined for refusing to take an extra assignment. In addition, a human resources employee and an operations manager testified that they could not recall any incident of a driver being terminated for insubordination. The court concluded that this was sufficient for the employee to establish his prima facie case.

Pretext. Moreover, genuine issues existed as to whether the employee’s refusal to accept the work was improper. FedEx’s operations manager testified the refusal to perform extra assignments “could” be insubordinate, but there may be an exception if the employee provides a reason. The employee claimed he told his manager and supervisor about his swollen hand, but neither his text messages nor written statements mention his hand injury. The court concluded that whether he provided a valid reason for declining the work is a question for the jury. Even if the employee’s refusal to take the extra assignments was insubordinate, several FedEx employees had testified that insubordination did not automatically result in termination.

Lastly, there was a genuine issue of fact as to whether extra deliveries were assigned based on seniority. The operations manager characterized seniority-based assignments as “common courtesy” and a driver testified that he and another driver, who both were less senior than the employee, were working at the time that the employee refused the extra assignments.

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