Transgender corrections officer advances Title VII hostile work environment claim
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Tuesday, July 9, 2019

Transgender corrections officer advances Title VII hostile work environment claim

By Kathleen Kapusta, J.D.

Despite evidence the employee repeatedly complained about harassment and told his supervisors he wished to conceal his status, a jury could find the remedial action taken by his employer was insufficient.

Citing allegations by a transgender corrections officer, including that he was subjected to unabated harassment from coworkers and supervisors that caused him to fear for his physical safety, a federal court in Arizona denied summary judgment against his Title VII hostile work environment claim. His constructive discharge claim failed, however (Doe v. State of Arizona, July 8, 2019, Snow, G.).

Stay to yourself. After the employee completed his initial training with the state department of corrections, he informed his supervisors that he was transitioning from female to male and requested that colleagues respect his status and refer to him by male pronouns or simply as "Officer Doe." Over the next four years, he alleged that his coworkers and supervisors sometimes called him a "she," a "he/she," and an "it," among other names. They also complained about his using the men’s restroom. Although he complained to his supervisors, no action was taken. Rather, the employee alleged, one supervisor told him to "stay to himself" because female corrections officers "feel uncomfortable with you."

First transfer. When his tires were slashed in the prison parking lot, the employee told the deputy warden but he purportedly did not respond. The employee then told the warden about the tires and other statements that made him fear for his safety. Agreeing that he had reason to fear for his safety, the warden transferred the employee but no official investigation was ever conducted into the slashed tires.

Second transfer. Despite his wishes to contrary, his new supervisor told other officers that the employee used to be female, prompting his colleagues to make offensive comments and ask unwelcome questions about his gender status. When his supervisor failed to take any corrective action, the employee requested another transfer.

Third transfer. Again, he alleged, his new supervisors and coworkers continued to discuss his gender status, including with some of the inmates. Although another officer filed a report stating that the supervisor referred to the employee as "he/she," the DOC did not investigate and once again, the employee requested a transfer.

Resignation. At the new unit, his supervisor allegedly referred to a prominent transgender celebrity as a "nut job," said he would like her in his prison because she would be "one sorry b—." and made comments about Doritos Rainbow Chips, stating "what the hell this is about paying 15, 20 bucks for a stupid bag of Doritos," and "who in their right mind would pay for Doritos like that to support the queers." The employee ultimately resigned less than a year later.

Hostile work environment. Finding that the employee pointed to sufficient facts to survive summary judgment on his hostile work environment claim, the court noted that he alleged his supervisors regularly disregarded his requests to conceal his status for the purpose of protecting his safety and repeatedly engaged in behavior that could be considered harassment by a jury.

A jury could also conclude that the remedial action taken by the DOC was insufficient, observed the court, noting that there was no evidence the DOC investigated most of his complaints. Moreover, while he repeatedly informed his supervisors of the alleged harassment, including that he wished to conceal his status, after one supervisors agreed he had reason to fear for his safety, there was no evidence that DOC opened an investigation into the tire slashing incident or took sufficient steps to prevent inmates from finding out about his status after his transfer.

Nor was there evidence that DOC informed the employee’s supervisors that this was a confidential issue to monitor once he was transferred. And when he complained that other officers—including his supervisor—were informing inmates of his status, DOC failed to undertake an investigation, did not reprimand the officers involved, and instead just transferred him once more.

Constructive discharge. As to his constructive discharge claim, while he pointed to two offensive comments made by his supervisor at his last unit, there was no evidence the supervisor was aware of the employee’s protected status (and the supervisor claimed he was unaware of his transgender status). Thus, said the court, there were no facts from which a jury could conclude that there was discrimination that resulted in a constructive discharge.

The case is No. CV-18-00384-PHX-GMS.

Attorneys: Stephen G. Montoya (Montoya Lucero & Pastor) for John Doe. Mark Ogden (Littler Mendelson) for State of Arizona.

Companies: State of Arizona

Cases: SexDiscrimination Discrimination SexualHarassment ArizonaNews

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