No. 16-24 ______________ IN THE SUPREME COURT OF THE UNITED STATES

No. 16-24
______________
IN THE
SUPREME COURT OF THE UNITED STATES
Spring Term, 2016
______________
BEETZ, INC.,
PETITIONER,
—against—
ERIKA RITE,
RESPONDENT.
______________
On Writ of Certiorari to the
United States Court of Appeals
for the Thirteenth Circuit
______________
BRIEF FOR PETITIONER
______________
Team 21
Attorneys for Petitioner, Beetz, Inc.
Team 21
QUESTIONS PRESENTED
I. Whether Erika Rite, a transgender woman, has a lawful claim and is entitled to compensatory
and punitive damages under Section 703 of Title VII of the Civil Rights Act of 1964 against
Beetz, Inc. for employment discrimination on the basis of sex discrimination.
II. Whether Erika Rite’s diagnosis of gender dysphoria qualifies as a “serious health condition”
under the Family Medical Leave Act of 1993, thus entitling her to unpaid job protected leave to
undergo gender reassignment surgery.
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TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................................................................................ i
TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iv
OPINIONS BELOW ........................................................................................................................1
STATUTORY PROVISIONS INVOLVED....................................................................................1
STATEMENT OF THE CASE........................................................................................................1
I.
STATEMENT OF FACTS ............................................................................................1
II.
PROCEDURAL HISTORY...........................................................................................5
SUMMARY OF ARGUMENT .......................................................................................................6
STANDARD OF REVIEW .............................................................................................................7
ARGUMENT AND AUTHORITIES ..............................................................................................8
I.
RITE HAS NO CLAIM UNDER TITLE VII BECAUSE SHE CANNOT
ESTABLISH A PRIMA FACIE CASE, AND BEETZ INC. MUST BE ALLOWEDD
TO MAKE LEGITIMATE BUSINESS DECISIONS. .................................................8
A. Rite Cannot Establish a Prima Facie Case of Discrimination “Because Of” Her
Sex............................................................................................................................8
1. The plain meaning of Title VII bars discrimination on the basis of biological
sex, not transgender. ..........................................................................................8
2. Rite was not subject to gender stereotyping under the Price Waterhouse
theory. ..............................................................................................................11
B. Beetz Had Legitimate Business Reasons for Decisions Related to Rite’s
Employment That Were Not Based on Rite’s Sex and Were Not Pre-Textual. ....20
II.
RITE DOES NOT HAVE A CLAIM UNDER THE FMLA BECAUSE SHE DID
NOT SUFFER FROM A SERIOUS HEALTH CONDITION....................................21
A. Rite’s Gender Dysphoria is Not a Serious Health Condition Under the FMLA. ..22
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1. Rite’s gender dysphoria did not involve inpatient care. ......................23
2. Rite’s gender dysphoria did not involve continuing treatment. ...........25
B. Rite’s Gender Reassignment Surgery is Exempted From Protection Under the
FMLA. ...................................................................................................................28
C. Even if Plaintiff’s Surgery Is Not Exempted, Plaintiff Has Still Failed to Show
That She Suffered From a Serious Health Condition Under the FMLA for the
Duration of Her Leave. ..........................................................................................29
CONCLUSION ..............................................................................................................................30
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TABLE OF AUTHORITIES
U.S. Supreme Court Cases
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945). ..........................................................................................................19
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984). ..........................................................................................................19
City of Arlington, Tx. v. F.C.C.,
133 S. Ct. 1863 (2013). ......................................................................................................19
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). ............................................................................................................8
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998). ..........................................................................................................8, 9
Perring v. United States,
447 U.S. 37 (1979). ..............................................................................................................9
Pierce v. Underwood,
487 U.S. 552 (1988). ............................................................................................................7
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989). ....................................................................................................12, 13
Tx. Dept. of Cmty Affairs v. Burdine,
450 U.S. 248 (1981). ..........................................................................................................20
Utility Air Regulatory Grp. v. E.P.A.,
134 S. Ct. 2427 (2014). ......................................................................................................19
U.S. Tax Court
O’Donnabhain v. Comm’r of Internal Revenue,
134 T.C. 34 (2010). ............................................................................................................28
Federal Circuit Court Cases
Barnes v. City of Cincinnati,
401 F.3d 729 (6th Cir. 2005). ......................................................................................14, 15
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Bibby v. Phila. Coca-Cola Bottling Co.,
260 F.3d 257 (3d Cir. 2001)...............................................................................................16
Bonkowski v. Oberg Indus., Inc.,
787 F.3d 190 (3d Cir. 2015)...............................................................................................23
Butler v. Castro,
896 F.2d 698 (2d Cir. 1990)...............................................................................................15
Dawson v. Bumble & Bumble,
396 F.3d 211 (2d Cir. 2005)...............................................................................................13
Doe v. City of Belleville,
119 F.3d 563 (7th Cir. 1997). ............................................................................................16
Etsitty v. Utah Transit Auth.,
502 F.3d 1215 (10th Cir. 2007). ....................................................................................8, 11
Ford-Evans v. United Space Alliance LLC,
329 F. App'x 519 (5th Cir. 2009). ......................................................................................23
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011). ..................................................................................15, 16
Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252 (1st Cir. 1999). .............................................................................................15
Holloway v. Arthur Andersen & Co.,
566 F.2d 659 (9th Cir. 1977). ..............................................................................................9
Jackson v. Cont.l-Cargo Denver,
183 F.3d 1186 (10th Cir. 1999). ..........................................................................................8
Kern v. City of Rochester,
93 F.3d 38 (2d Cir. 1996)...................................................................................................15
Kiley v. Am. Soc’y for the Prevention of Cruelty to Animals,
296 F. App’x 107 (2d Cir. 2008). ......................................................................................13
Lackey v. Jackson Cnty.,
104 F. App’x 483 (6th Cir. 2004). .....................................................................................22
Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,
691 F.3d 294 (3d Cir. 2012)...............................................................................................23
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Plotke v. White,
405 F.3d 1092 (10th Cir. 2005). ....................................................................................8, 20
Rite v. Beetz, Inc.,
575 F.3d 185 (13th Cir. 2015). ..............................................................................13, 14, 21
Roche v Saint Lukes Shawnee Mission Health Sys., Inc.,
46 F. App’x 867 (8th Cir. 2002). .......................................................................................28
Schwenk v. Hartford,
204 F.3d 1187 (9th Cir. 2000). ..........................................................................................12
Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000).......................................................................................9, 13, 15
Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004). ............................................................................................14
Sommers v. Budget Mktg., Inc.,
667 F.2d 748 (8th Cir. 1982). ..............................................................................................9
Spearman v. Ford Motor Co.,
231 F. 3d 1080 (7th Cir. 2000). .........................................................................................16
Tillman v. Ohio Bell Tel. Co.,
545 F. App'x 340 (6th Cir. 2013). ......................................................................................29
Ulane v. E. Airlines, Inc.,
742 F.2d 1081 (7th Cir. 1984). ................................................................................9, 10, 11
Federal District Court Cases
Creed v. Family Express Corp.,
2009 WL 35237 (N.D. Ind. January 5, 2009). ...................................................................12
Dobre v. National R.R. Passenger Corp.,
850 F. Supp. 284 (E.D. Pa. 1993). .....................................................................................10
Doe v. U.S. Postal Serv.,
1985 WL 9446 (D.D.C. June 12, 1985). ............................................................................10
E.E.O.C. v. R.G. and G.R. Harris Funeral Homes, Inc.,
100 F. Supp. 3d 594 (E.D. Mich. 2015). ..........................................................11, 12, 15, 18
James v. Ranch Mart Hardware, Inc.,
1994 WL 731517 (D. Kans. December 23, 1994). ......................................................10, 11
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Johnson v. Dollar Gen.,
880 F. Supp. 2d 967 (N.D. Iowa 2012). .............................................................................24
Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ.,
97 F. Supp. 3d. 657 (W.D. Pa. 2015). ................................................................................11
Kosilek v. Spencer,
889 F. Supp. 2d 190 (D. Mass. 2012). ...............................................................................28
Meadows v. Tx. Fed. Credit Union,
2007 WL 192942 (E.D. Tex. Jan. 22, 2007). .....................................................................26
Oiler v. Winn-Dixie,
2002 WL 31098541 (E.D. La. September 16, 2002). ........................................8, 11, 17, 18
Phillips v. Quebecor World RAI, Inc.,
2005 WL 6126702 (E.D. Wis. Aug. 16, 2005),
aff'd, 450 F.3d 308 (7th Cir. 2006). ...................................................................................23
Pollard v. N.Y. Methodist Hosp.,
2015 WL 5719617 (E.D.N.Y. Sept. 29, 2015). .................................................................26
Powell v. Read’s, Inc.,
436 F. Supp. 369 (D. Md. 1977). .......................................................................................10
Rite v. Beetz, Inc.,
585 F. Supp. 3d 1 (S.D. Wgr. 2015). ......................................................................... passim
Schroer v. Billington,
577 F. Supp. 2d 293 (D.D.C. 2008). ..................................................................................17
Spears v. La. Dep't of Pub. Safety & Corr.,
2 F. Supp. 3d 873 (M.D. La. 2014). ...................................................................................26
Terry v. E.E.O.C.,
1980 WL 334 (E.D. Wis. December 10, 1980). ................................................................10
Voyles v. Ralph K. Davies Med. Ctr.,
403 F. Supp. 456 (N.D. Calif. 1975). .................................................................................10
Administrative Decisions
Macy v. Holder,
2012 WL 1435995 (E.E.O.C. April 20, 2012). .................................................................17
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Regulations
29 C.F.R. § 825.113(d) (2015). ..................................................................................................7, 28
29 C.F.R. § 825.114 (2015). ..........................................................................................................23
29 C.F.R. § 825.115 (2015). ..........................................................................................................25
29 C.F.R. § 825.114-15 (2015) ......................................................................................................23
29 C.F.R. § 825.115(a) (2015) .......................................................................................................26
29 C.F.R. § 825.115(a)(1)-(2) (2015) ............................................................................................26
29 C.F.R. § 825.115(b) (2015) .......................................................................................................26
29 C.F.R. § 825.115(c) (2015) .................................................................................................26, 27
29 C.F.R. § 825.115(d) (2015) .......................................................................................................27
29 C.F.R. § 825.115(e) (2015) .................................................................................................27, 28
29 C.F.R. §§ 825.115(a)-(e) (2015). ..............................................................................................25
Statutes
29 U.S.C. § 2601 et seq. (2012). ......................................................................................................1
29 U.S.C. § 2601(b) (2012). ..........................................................................................................21
29 U.S.C. § 2611(11) (2012). ........................................................................................................22
29 U.S.C. § 2612(a)(1)(D) (2012). ................................................................................................22
29 U.S.C. §§ 2612(a)(1)(A)-(E) (2012). ........................................................................................21
42 U.S.C. § 2000e-2(a) (1964).........................................................................................................1
42 U.S.C. § 2000e-2(a)(1) (2012). ...................................................................................................8
U.S. Legislative Acts
Equality Act of 2015,
H.R.3185, 114th Cong. (2015)...........................................................................................18
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Family and Medical Leave Act of 1993,
PL 103–3, February 5, 1993, 107 Stat. 6 (1993)................................................................21
Other Authorities
Breast Implants, ENCYCLOPEDIA OF SURGERY,
http://www.surgeryencyclopedia.com/A-Ce/Breast-Implants.html
(last accessed February 15, 2016). .....................................................................................25
CORPORATE LEGAL COMPLIANCE HANDBOOK § 39.09 (2014),
available at 2014 WL 4221766. ........................................................................................22
Phyllis Randolph Fry, The International Bill of Gender Rights vs. the Cider House Rules:
Transgenders Struggle With the Courts Over What Clothing They Are Allowed to Wear
on the Job, Which Restroom They Are Allowed to Use on the Job, Their Right To Marry,
and the Very Definition of Their Sex,
7 WM. & MARY J. WOMEN & L. 133, 177 (2000). .............................................................18
Andrew Gilden, Toward a More Transformative Approach: The Limits of Transgender Formal
Equality,
23 BERKELEY J. GENDER L. & JUST. 83, 99 (2008). ...........................................................13
GLAAD Media Reference Guide – Transgender Issues,
GLAAD, http://www.glaad.org/reference/transgender
(last accessed February 15, 2016). .....................................................................................28
Tristin K. Green, Making Sense of the McDonnell Douglas Framework: Circumstantial Evidence
and Proof of Disparate Treatment under Title VII,
87 CALIF. L. REV. 983, 986 (1999).. .........................................................................8, 20, 21
Zachary A. Kramer, Some Preliminary Thoughts on Title VII’s Intersexions,
7 GEO. J. GENDER & L. 31, 48 (2006). .........................................................................11, 12
Orchiectomy, ENCYCLOPEDIA OF SURGERY,
http://www.surgeryencyclopedia.com/La-Pa/Orchiectomy.html
(last accessed February 15, 2016). .....................................................................................25
Plastic, reconstructive, and cosmetic surgery, ENCYCLOPEDIA OF SURGERY,
http://www.surgeryencyclopedia.com/Pa-St/Plastic-Reconstructive-and-CosmeticSurgery.html
(last accessed February 15, 2016). .....................................................................................25
Surgical Options, CENTER OF EXCELLENCE FOR TRANSGENDER HEALTH,
http://transhealth.ucsf.edu/trans?page=protocol-surgery
(last accessed February 11, 2016). ...............................................................................24, 25
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Francis J. Vaas, Title VII: Legislative History,
3 B.C. L. REV. 431, 441 (1966)..........................................................................................10
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OPINIONS BELOW
The opinion of the United States District Court for the Southern District of Wagner is
reported at 585 F. Supp. 3d 1 (S.D. Wgr. 2015) and is included in the record at pages 2-21. The
opinion of the United States Court of Appeals for the Thirteenth Circuit is reported at 585 F.3d
185 (13th Cir. 2015) and is included in the record at pages 22-30.
STATUTORY PROVISIONS INVOLVED
This case involves application of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a) (1964) (“Title VII”), which provides that employers may not discriminate against
employees in decisions related to their employment because of their sex.
This case also involves the interpretation of the Family and Medical Leave Act of 1993
(“FMLA”), which allows eligible employees to take up to twelve weeks of leave if they meet the criteria
listed in the statute. 29 U.S.C. § 2601 et seq.
STATEMENT OF THE CASE
I.
STATEMENT OF FACTS
Ericka Rite was “designated male at birth” and “given the name Eric.” R. at 3. She
began to experience “extreme confusion about her gender identity” after puberty “because she
always identified as female.” R. at 3. Upon reaching adulthood, Rite continued to present as a
man, but “continued to feel uncomfortable” in so doing. R. at 3. After graduating from college,
Rite completed a Master’s degree in Business Administration and was subsequently hired by
Beetz, Inc., “a multi-billion dollar corporation that is one of the top developers, producers, and
distributors of audio output devices worldwide.” R. at 3-4.
Rite began working as a sales consultant for Beetz in 2005. R. at 4. She was eventually
“promoted to Lead Sales Consultant for developing the most innovative brands and for
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generating the highest sales numbers for Beetz products.” R. at 4. She also had “strong rapport
and trust” with investors in the company. R. at 4. Her gender identity confusion continued,
however, leading her to seek consultation with a psychotherapist in late 2012 “about her anxiety
and discomfort about her gender identity.” R. at 4. Her therapist diagnosed her with gender
dysphoria, meaning her “gender at birth [was] contrary to the one [she] identified with,” causing
her distress. R. at 4.
In early 2013, Rite was diagnosed with gender dysphoria, visited often with Dr. Gee,
started “taking medications to help with her depression and anxiety[,]” and “began to identify as
transgender.” R. at 5. Accordingly, “her mental condition improved significantly.” R. at 5.
During this time, Dr. Gee “discussed the implications and risks of Rite’s options” for her
transition. R. at 5.. Then, “[a]fter careful consideration, Rite decided that she would undergo
gender reassignment surgery to be ‘reborn’ as a woman.” R. at 5. She began the process of
“hormone replacement therapy” to change her appearance “to more closely resemble that of a
woman. R. at 5. Dr. Gee informed Rite of the timeline for physical changes related to the
hormone replacement therapy. R. at 5-6. According to Dr. Gee’s representation, “Rite . . .
would begin noticing physical changes within one to three months . . . [and] would continue to
notice physical changes over the course of two years, at which point she could undergo gender
reassignment surgery.” R. at 6.
In late 2013 the CEO and founder of Beetz, Andre Young, announced that he planned to
“promote a sales consultant to the position of Executive Distributor,” a position recently vacated
through retirement. R. at 6. This person would be responsible for all sales and distribution
activity, “and would frequently meet with representatives from other companies and agencies
around the world.” R. at 6. They would also receive a significant “increase in salary.” R. at 6.
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Young wanted someone “who could best project the company’s public image,” so he wanted to
promote someone who “had worked for Beetz for a minimum of seven years” and who “had an
exemplary performance record” and could “appropriately [present] Beetz to the industry and to
its customers.” R. at 6.
Young considered Rite and another sales consultant with a good sales record, O’Shay
Jackson, “as the two top contenders for the promotion.” R. at 6. Jackson had worked for Beetz
since 2007. R. at 6. He had designed some of Beetz’ brands and “did exceptional work” with
the investors with whom he worked. R. at 6. Like Rite, he had an MBA, but with an emphasis
in finance, “making him valuable in understanding and growing Beetz’ net worth.” R. at 6.
Young reviewed the most recent performance evaluations of the two contenders in January 2014.
R. at 6-7.
Jackson’s overall rating on his review from September 2013 was 3.5, but it was noted
that he was “doing a great job” and was “eager and excited.” R. at 32. The review also noted
that Jackson was “always eager to start new projects and meet new clients.” R. at 32. The
comments cautioned that he needed to “[i]mprove data entry and review skills,” and that he was
having trouble “learning new computer programs.” R. at 32. The review also noted one
confrontation Jackson had with a co-worker, but concluded that he “took accountability and
apologized” and has since “been on his best behavior.” R. at 32.
Rite’s evaluation from April 2013 had a slightly higher overall rating (4.1), but noted
that, while she had been “eager to start a new project or assignment,” she had been “distracted”
recently. R. at 33. The comments cautioned that Rite needed to “[i]mprove level of engagement
and initiative with department and clients.” R. at 33. Young interviewed both Rite and Jackson
early in 2014. R. at 7. At this interview Rite first informed Young that she “identified as female,
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was under a physician’s care, and was receiving hormone replacement therapy.” R. at 7. She
also said she intended to “undergo gender reassignment surgery by the end of 2014” and wanted
to be called Ericka. R. at 7. Young remarked that he appreciated Rite’s honesty. R. at 7.
Rite began presenting as a woman soon thereafter, wearing makeup and “professional
female attire.” R. at 7. In the sales department, some supported Rite, while “others scorned her
for behavior they considered immoral.” R. at 7. In late February 2014, Young selected Jackson
for the promotion to Executive Director. R. at 7. Rite congratulated him “and continued
working as the lead sales consultant.” R. at 7. A week later, Rite was given a lateral transfer to
the Graphic Design Department and continued to “receive the same salary.” R. at 8. Young told
Rite that she was moved to a position with “less public visibility” because of Beetz’ “great pride
in its image.” R. at 8. Rite “believed she was being discriminated against because of her
transgender identity.” R. at 8.
Subsequently, “Dr. Gee determined that Rite was ready for gender reassignment surgery
and referred her to Dr. Romel Dreigh[,]” who also approved of the procedure. R. at 8. Rite gave
notice to Beetz, Inc., which included a medical certification filled out by Dr. Dreigh, and
proceeded to take leave for the surgery which took place on January 30, 2015. R. at 8-9. “Rite
underwent gender reassignment surgery, as well as breast augmentation and further surgery to
‘feminize’ her facial features.” R. at 9. Rite was told by the surgeon, Dr. Dreigh, “that she
should stay in bed for at least one week,” that she could resume daily activities in one to two
weeks, and that she should “avoid strenuous activities for about three to four weeks so as not to
disrupt the healing process.” R. at 9. “Rite . . . planned to return to work on March 6, 2015.” R.
at 9.
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The following Monday, Beetz reached out to Rite and left a voicemail, “informing her
that her FMLA leave request was denied and, because Rite had exhausted her accrued paid sick
leave, any additional leave taken would result in disciplinary action.” R. at 9. Rite received this
message on February 8, 2015. R. at 9. Receiving no further contact from Rite, Beetz Inc.
terminated her on February 27, 2015. R. at 9.
II.
PROCEDURAL HISTORY
In March 2015 Rite “filed a complaint with the Equal Employment Opportunity
Commission . . ., alleging that Beetz had engaged in sex discrimination on the basis of
transgender identity.” R. at 9. Rite alleged that she was more qualified than Jackson for the
promotion, and that she “experienced adverse treatment in the workplace after she began to
present herself as a woman.” R. at 9. The EEOC determined that Rite had a prima facie case of
sex discrimination under Title VII “and issued her a Right to Sue notification.” R. at 9. Rite
filed suit in Wagner District Court in April 2015, “claiming a violation of both Title VII and the
FMLA.” R. at 9.
The district court found that “Rite’s Title VII claim must be denied” because she
remained employed after a lateral transfer, she was “permitted to present her female identity,”
and because “Title VII does not prohibit discrimination based on gender identity.” R. at 14. The
appellate court reversed, stating that her Title VII claim should not be dismissed because “Rite’s
gender nonconformity was a motivating factor in Young’s decision to transfer Rite” to Graphic
Design, a “position with significantly less visibility.” R. at 27. The appellate court also held that
“an individual who identifies as transgender . . . may not be discriminated against on the basis of
their gender identity under Title VII.” R. at 27.
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In her complaint, Rite also alleged that Beetz violated the FMLA. R. at 2. The district
court held that her surgery did involve inpatient care, but that the surgery itself was an elective
treatment for an underlying condition which was not a serious health condition as defined by the
FMLA. R. at 21. Therefore, the district court granted summary judgment to Beetz. R. at 21.
The appellate court reasoned that the FMLA should be interpreted as including gender dysphoria
as a serious health condition. R. at 30. The Court therefore reversed the holding of the district
court and remanded the case. R. at 30.
The petition for the writ of certiorari was granted by this Court in 2016 to consider the
issues in this case.
SUMMARY OF ARGUMENT
The district court correctly held that Ericka Rite had no Title VII claim for sex
discrimination against her employer, Beetz, Inc., and did not qualify for leave under the Family
and Medical Leave Act. An employee making a Title VII claim must prove a prima facie case,
including that they were subject to an adverse employment action that occurred “because of” the
employee’s sex. Rite has no claim that Beetz’ employment decisions were motivated in part by
her sex, as required under Title VII. Rite is a transgendered person, having been born as a man
and transitioning more recently. The clear meaning of Title VII, and Congressional intent, is that
an employer cannot discriminate against an employee on the basis of that employee’s biological
sex. This has been confirmed by courts in many federal circuits. And the attempt by the EEOC
to redefine the plain meaning of Title VII is not a reasonable reading of the statute.
The appellate court found that Rite had a discrimination claim under the gender
stereotyping theory of Price Waterhouse. That theory has only been applied where there is
sufficient evidence that employment actions were based on the masculinity of a man or
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femininity of a woman. There is no such evidence in this case. The appellate court also urged to
defer to the EEOC on this matter. But the EEOC has read the plain language of Title VII in a
manner that is simply not reasonable. It should thus be afforded no such deference.
In addition to the fact that Rite cannot prove a prima facie case, actions taken by her
employer were taken for legitimate business reasons that were not pre-textual. The court should
defer to the business decision of Beetz’s CEO, Andre Young, in deciding whom to promote and
where to place Rite in the organization.
Rite also was not entitled to leave under the FMLA because the FMLA simply does not
apply here. While gender dysphoria can be a serious health condition, Rite’s specific effects of
her condition do not rise to the level necessary to hold that a serious health condition existed.
Rite’s surgery is also exempted under 29 C.F.R. § 825.113(d), and the effects of the sex
reassignment surgery did not create a serious health condition sufficient to protect the entirety of
her absence from work.
The district court thus correctly held that Rite had not proven a prima facie case, that she
had no claim of sex discrimination under Title VII, and that she did not qualify for leave under
the FMLA. Accordingly, this Court should affirm the district court’s decision on behalf of
Beetz, Inc., reverse the appellate court, and affirm the dismissal of Rite’s claims.
STANDARD OF REVIEW
This Court reviews questions of law de novo. Pierce v. Underwood, 487 U.S. 552, 558
(1988).
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ARGUMENT AND AUTHORITIES
I.
RITE HAS NO CLAIM UNDER TITLE VII BECAUSE SHE CANNOT
ESTABLISH A PRIMA FACIE CASE, AND BEETZ INC. MUST BE ALLOWEDD
TO MAKE LEGITIMATE BUSINESS DECISIONS.
A. Rite Cannot Establish a Prima Facie Case of Discrimination “Because Of” Her Sex.
Title VII of the Civil Rights Act of 1964 states that “[i]t shall be an unlawful employment
practice for an employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's . . .
sex . . . .” 42 U.S.C. § 2000e-2(a)(1) (2012). In order to bring a claim under Title VII for sex
discrimination, the plaintiff must prove a prima facie case, including that the employer took an
adverse employment action against the plaintiff because of their sex. Etsitty v. Utah Transit
Auth., 502 F.3d 1215, 1220 (10th Cir. 2007) (citing Plotke v. White, 405 F.3d 1092, 1099 (10th
Cir. 2005); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Establishing a
prima facie case determines whether the plaintiff has an actionable claim. Oiler v. Winn-Dixie,
2002 WL 31098541, at *3 (E.D. La. September 16, 2002). See also Tristin K. Green, Making
Sense of the McDonnell Douglas Framework: Circumstantial Evidence and Proof of Disparate
Treatment under Title VII, 87 CALIF. L. REV. 983, 986 (1999).
1. The plain meaning of Title VII bars discrimination on the basis of
biological sex, not transgender.
Rite cannot bring a claim under Title VII based on being transgender, because
“transgender” is not a protected class under Title VII. “Sex” is. As a remedial statute, Title VII
should be “liberally construed.” Jackson v. Cont’l-Cargo Denver, 183 F.3d 1186, 1189 (10th
Cir. 1999). However, this Court has previously stated that Title VII is not a “general civility
code.” Etsitty, 502 F.3d at 1220 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
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75, 80 (1998)). It only prohibits employment discrimination that the plaintiff can demonstrate
was “because of” the plaintiff’s sex. Id. at 1220-21. And the word “sex” in Title VII should be
given its “traditional definition, rather than an expansive interpretation.” Sommers v. Budget
Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982). See also Holloway v. Arthur Andersen & Co.,
566 F.2d 659, 663 (9th Cir. 1977) (“Congress has not shown any intent other than to restrict the
term ‘sex’ to its traditional meaning.”) Transgender thus does not fall under the protection of
Title VII. Sommers, 667 F.2d at 750.
This basic fact has been affirmed repeatedly by courts. For example, the Ulane court
flatly stated that, while it did not “condone discrimination in any form,” nevertheless, “Title VII
does not protect transsexuals.” Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984).
In Ulane an airplane pilot, born a male named Kenneth Ulane, began to experience the feeling of
being female early in life. Id. at 1082. Ulane was hired by Eastern Airlines in 1968 as a man,
but began hormone treatments and eventually underwent sex reassignment surgery in 1980. Id.
She was fired as Karen Ulane in 1981. Id. Ulane brought a Title VII sex discrimination charge
against Eastern.
The court opined that it was its responsibility “to interpret [Title VII] and determine what
Congress intended when it decided to outlaw discrimination based on sex.” Id. See also
Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000) (“When interpreting a statute, the role of a
court is limited to discerning and adhering to legislative meaning.”) “It is a maxim of statutory
construction,” the Ulane court continued, “that, unless otherwise defined, words should be given
their ordinary, common meaning.” 742 F.2d at 1085 (citing Perring v. United States, 447 U.S.
37. 42 (1979)). Looking at the plain meaning of “sex” in Title VII, the court decided that “a
prohibition on discrimination based on an individual’s sex is not synonymous with a prohibition
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on discrimination based on an individual’s sexual identity.” Id. The court also looked at the
legislative history of Title VII to determine that “Congress never . . . intended that [Title VII]
apply to anything other than the traditional concept of sex.” Id. See also Francis J. Vaas, Title
VII: Legislative History, 3 B.C. L. REV. 431, 441 (1966) (the amendment adding the word “sex”
as a protected class under Title VII was clearly intended to cover the traditional male-female
binary, and “proposed and quickly adopted after hasty debate.”)
This concept means that the
word “sex” in Title VII means “biological male or female” unless Congress provides a new
definition. Ulane, 742 F.2d at 1087.
This holding from Ulane is in the mainstream of cases that have asked whether “sex” in
Title VII can be construed to mean transgender. The list of cases that concur, which includes
Holloway and Sommers cited previously, is long. See, e.g., Voyles v. Ralph K. Davies Med. Ctr.,
403 F. Supp. 456, 457 (N.D. Calif. 1975) (“it becomes clear that in enacting Title VII, Congress
had no intention of proscribing discrimination based on an individual's transsexualism”); Powell
v. Read’s, Inc., 436 F. Supp. 369, 370 (D. Md. 1977) (“discrimination against a transsexual . . . is
precisely what is not reached by Title VII.”); Terry v. E.E.O.C., 1980 WL 334, at *3 (E.D. Wis.
December 10, 1980) (“[Title VII] does not protect males dressed or acting as females”); Doe v.
U.S. Postal Serv., 1985 WL 9446, at *2 (D.D.C. June 12, 1985) (“‘[P]rohibition against
discrimination based on an individual's sex is not synonymous with a prohibition against
discrimination based on an individual's sexual identity disorder or discontent with the sex into
which they are born.’” (quoting Ulane, 742 F.2d at 1085)); Dobre v. National R.R. Passenger
Corp., 850 F. Supp. 284, 286-87 (E.D. Pa. 1993) (“Simply stated, Congress did not intend Title
VII to protect transsexuals from discrimination on the basis of their transsexualism.”); James v.
Ranch Mart Hardware, Inc., 1994 WL 731517, at *2 (D. Kans. December 23, 1994) (“Plaintiff
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cannot state a claim for discrimination based upon transsexualism because employment
discrimination based upon transsexualism is not prohibited by Title VII.”).
This string of cases has been reaffirmed in the more recent Tenth Circuit case involving
Krystal Etsitty, a transgendered woman who was fired by her employer. Etsitty, 502 F.3d at
1218. She claimed she was discriminated against because of her sex, in violation of Title VII.
Id. The Tenth Circuit explicitly reviewed the Ulane decision and concluded, “[t]his court agrees
with Ulane and the vast majority of federal courts to have addressed this issue,” that
“discrimination against a transsexual based on the person's status as a transsexual is not
discrimination because of sex under Title VII.” Id. at 1221. Like the Ulane court and many
others, the Tenth Circuit relied on “the plain language of the statute” to come to this conclusion.
Id. See also Oiler, 2002 WL 31098541 at *6 (“The Court agrees with Ulane and its progeny that
Title VII prohibits employment discrimination on the basis of . . . biological sex [which does not]
include sexual identity or gender identity disorders.”); Johnston v. Univ. of Pittsburgh of the
Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d. 657, 671 (W.D. Pa. 2015) (quoting Ulane,
742 F.2d at 1085) (reaffirming that Title VII’s prohibition of sex discrimination is not the same
as prohibiting discrimination on the basis of gender identity disorder).
2. Rite was not subject to gender stereotyping under the Price Waterhouse
theory.
Simply put, nearly all federal courts to date have generally concluded that transgender is
not a protected class under the plain language of Title VII. See Zachary A. Kramer, Some
Preliminary Thoughts on Title VII’s Intersexions, 7 GEO. J. GENDER & L. 31, 48 (2006)
(asserting that both transgender and sexual orientation are not protected classes under Title VII,
and that “all courts agree that sexual orientation is not protected under Title VII . . . .”); E.E.O.C.
v. R.G. and G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, 598 (E.D. Mich. 2015)
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(noting that, “like sexual orientation, transgender or transsexual status is currently not a protected
class under Title VII . . . .”). Instead, some courts have decided that, if a plaintiff is
discriminated against because they don’t fit into the defendant’s stereotypes of how their
assigned gender should act, it is likely actionable under Title VII under the sex-stereotyping
theory first advanced in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See, e.g., Creed v.
Family Express Corp., 2009 WL 35237, at *6 (N.D. Ind. January 5, 2009) (“Although
discrimination because one's behavior doesn't conform to stereotypical ideas of one's gender may
amount to actionable discrimination based on sex, harassment based on sexual preference or
transgender status does not.”); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000)
(“Discrimination because one fails to act in the way expected of a man . . . is forbidden under
Title VII.”).
To sustain a Title VII claim under the sex stereo-typing theory, “a plaintiff must show
that the employer actually relied on his or her gender in making an adverse employment
decision.” Creed, 2009 WL 35237 at *6. See also R.G. & G.R. Harris, 100 F. Supp. 3d at 603
(a transgendered employee who was terminated had a valid Title VII claim because “failure to
conform to sex stereotypes was the driving force” behind the termination). The sex stereotyping
theory is based on this Court’s decision in Price Waterhouse, which held that “employers may
not take employment actions based on an employee's failure to conform to traditional gender
stereotypes.” Kramer, at 7. In the Price Waterhouse case, a woman named Ann Hopkins was
denied partnership in an accounting firm. 490 U.S. at 232. This Court found the possibility of a
Title VII violation, in part because “some of the partners reacted negatively to Hopkins'
[aggressive] personality because she was a woman;” in other words, discriminating against her
because she did not act like a woman is stereotyped to act equated to discrimination “because of”
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her sex. Id. at 235. One partner went so far as to tell Hopkins that, in order to improve her odds
for partnership, she should “walk more femininely, talk more femininely, dress more femininely,
wear make-up, have her hair styled, and wear jewelry.” Id. This Court further explained, “[i]n
the specific context of sex stereotyping, an employer who acts on the basis of a belief that a
woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at
250. This is so because, “we are beyond the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype associated with their group.” Id.
It is instructive that this Court stated in Price Waterhouse that “[r]emarks at work that are
based on sex stereotypes do not inevitably prove that gender played a part in a particular
employment decision. The plaintiff must show that the employer actually relied on her gender in
making its decision.” Id. at 251. This last point was elaborated by the Second Circuit in a case
concerning an employee harassed for his sexual orientation. Simonton, 232 F.3d at 38. The Price
Waterhouse sexual stereotyping theory does not automatically “bootstrap sexual orientation into
Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual
men are stereotypically masculine.” Id. See also Kiley v. Am. Soc’y for the Prevention of
Cruelty to Animals, 296 F. App’x 107, 109 (2d Cir. 2008) (“a plaintiff may not use a gender
stereotyping claim to ‘bootstrap protection for sexual orientation into Title VII.’ (quoting
Dawson v. Bumble & Bumble, 396 F.3d 211, 218 (2d Cir. 2005))); Andrew Gilden, Toward a
More Transformative Approach: The Limits of Transgender Formal Equality, 23 BERKELEY J.
GENDER L. & JUST. 83, 99 (2008) (“courts have been careful to avoid ‘bootstrapping’ sexual
orientation discrimination claims onto sex-stereotyping claims”). The appellate court in the
present case made this exact mistake, bootstrapping gender identity into Title VII through sexstereotyping, and this Court must reject that attempt. Rite v. Beetz, Inc., 575 F.3d 185, 191 (13th
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Cir. 2015) (“we hold that an individual who identifies as transgender . . . may not be
discriminated against on the basis of their gender identity under Title VII.”)
Courts that have found a cause of action for sex discrimination against transgendered
individuals under Title VII have generally done so under this sex stereo-typing theory. For
example, an early decision to use Price Waterhouse in this way was Smith v. City of Salem. 378
F.3d 566 (6th Cir. 2004). The case involved Jimmie Smith, a city firefighter terminated after
being diagnosed with gender identity disorder and slowly transitioning from a man to a woman.
Id. at 568. His complaint alleged that his termination was “because of” sex because it was
related to his “non-masculine behavior,” which was deemed inappropriate for him as a man. Id.
at 570. The court found that this discrimination based on sex stereotyping was prohibited by
Title VII. “Having alleged that his failure to conform to sex stereotypes concerning how a man
should look and behave was the driving force behind Defendants' actions,” the court said,
“[Plaintiff] has sufficiently pleaded claims of sex stereotyping and gender discrimination.” Id. at
572. The court thus found that Smith had a claim for sex discrimination under Title VII due to
“discrimination based on a failure to conform to stereotypical gender norms.” Id. at 573.
The crucial point is that the court in Smith found a Title VII claim due to discrimination
based on sex stereotyping, not on the mere fact that Smith was transgendered. In other words,
the Title VII claim arose out of the fact that the defendants thought Smith was not acting as
masculine as a man should act, not the mere fact that Smith was transgendered. Subsequent
courts have also used evidence of sex stereotyping to apply Price Waterhouse and find a basis
for a Title VII claim. In Barnes, the Sixth Circuit again found that a transgendered individual
had a claim for sex discrimination under Title VII, in this case because he was warned he “had
not been acting masculine enough” before failing a probationary period. Barnes v. City of
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Cincinnati, 401 F.3d 729, 735 (6th Cir. 2005). The court said that the plaintiff “established that
he was a member of a protected class by alleging discrimination against the City for his failure to
conform to sex stereotypes.” Id. at 737. This is typical of the rationale for finding a Title VII
claim for sex discrimination for transgendered individuals. The mere fact of being transgendered
is not the crucial factor. Being directly discriminated against due to a failure to conform to
stereotypes is required. See, e.g., R.G. & G.R. Harris, 100 F. Supp. 3d at 603 (finding a valid
Title VII claim where a transgendered employee was fired for not conforming to the employer’s
gender-based expectations and prejudices).
The Eleventh Circuit has taken this a step further, arguing that “A person is defined as
transgender precisely because of the perception that his or her behavior transgresses gender
stereotypes.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011). Thus, the court said,
discrimination against a transgendered person is discrimination because of sex. Id. at 1317.
This is a misreading of Title VII, as explained supra, and also does not make good sense. As the
Second Circuit said in Simonton, there must be sufficient evidence that the plaintiff was
discriminated against because of non-gender conforming behavior to support a claim under Price
Waterhouse. Simonton, 232 F.3d at 38. The Simonton court noted that “[a] conclusory
allegation without evidentiary support . . . does not state a valid claim.” Id. (quoting Kern v. City
of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (quoting Butler v. Castro, 896 F.2d 698, 700 (2d Cir.
1990))). See also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 (1st Cir. 1999)
(rejecting an “unsupported conclusion” that all harassment based on sexual orientation is ‘sex . . .
related.’”).
But even the Eleventh Circuit states that there must be evidence, direct or circumstantial,
that the adverse action was taken on the basis of the transgendered person’s “gender non-
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conformity.” Glenn, 663 F.3d at 1320. The Glenn court found that terminating a transgendered
woman was sex discrimination because of direct testimony that the termination occurred because
Glenn was a man dressed as a woman; Brumby admitted to terminating Glenn due to “‘the sheer
fact of the transition.’” Id. at 1320-21. This direct evidence of gender stereotyping, the court
said, would be the end of the inquiry under Title VII. Id. at 1321. But it is crucial that the
plaintiff offered evidence that the adverse action was taken because of the plaintiff’s failure “to
comply with societal stereotypes of how men ought to appear or behave;” otherwise, the Title
VII claim must fail. Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001).
Compare Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997) (plaintiff prevailed on a
Title VII claim for harassment because of sex due to evidence of being treated as insufficiently
masculine) with Spearman v. Ford Motor Co., 231 F. 3d 1080, 1085 (7th Cir. 2000) (claim
rejected by court as harassment was related to plaintiff’s homosexuality, not stereotyped
masculinity, and thus not protected by Title VII).
Here, there is no evidence that Rite was subjected to any treatment based on being a man
and not acting in a masculine way, as demanded by this long legal precedent, and by the sex
stereo-typing theory under Price Waterhouse. Comments made by Rite’s co-workers are not
significant, as noted by this Court in Price Waterhouse. The important point is that decisions
made by Rite’s superior, CEO Andre Young, had nothing to do with whether Rite was masculine
enough. Indeed, there is no such evidence in the record. As explained infra, Young promoted a
co-worker who had exhibited “extraordinary skills and performance.” Rite v. Beetz, Inc., 585 F.
Supp. 3d 1, 8 (S.D. Wgr. 2015). Young gave Rite a lateral transfer to the Graphic Design
Department based on its lower “’public visibility,’” not because she was not masculine enough,
but as a “business decision . . . best-suited to sustain the brand of his company.” Id. at 8, 16-17.
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Even if this was because of Rite’s transgendered status, and there is scant evidence that is the
case, such action would not be barred under Title VII. As there is no evidence any action was
based on Young believing Rite was a man who was not sufficiently masculine, as required under
Price Waterhouse theory, Rite has no Title VII claim. This Court should not use Price
Waterhouse to bootstrap transgender as a protected class under Title VII.
The Schroer decision is outside the mainstream, unsupported in law and in fact, and
should not be relied upon by this Court. Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C.
2008). The Schroer court first admits that “transsexuality . . . [is] a characteristic that, in and of
itself, nearly all federal courts have said is unprotected by Title VII.” Id. at 305. The court
looked for evidence of discrimination based on gender non-conformity, as courts supra have
done. Id. But the court then left its own reasoning behind, and decided that discrimination on
the basis of transsexuality is discrimination “because of” sex under Title VII. Id. at 308. The
court offers no case law to support its conclusion, likely because there is none.
The EEOC has likewise recently gone far afield from the long precedent of the federal
court system, and the intent of Congress, in its decision in Macy. Macy v. Holder, 2012 WL
1435995 (E.E.O.C. April 20, 2012). In Macy, the EEOC said, “discrimination against a
transgender individual because that person is transgender is, by definition, discrimination ‘based
on . . . sex,’ and such discrimination therefore violates Title VII.” Id. at *11. It is clear that the
EEOC has breached the intent of Congress. As the Oiler court noted, “many courts . . . have
struggled for two decades with the issue of whether Title VII, in prohibiting discrimination on
the basis of “sex”, also proscribes discrimination on the basis of sexual identity disorder,” giving
“Congress . . . an open invitation to clarify its intentions.” Oiler, 2002 WL 31098541 at *6.
However, “[t]he repeated failure of Congress to amend Title VII supports the argument that
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Congress did not intend Title VII to prohibit discrimination on the basis of a gender identity
disorder.” Id. It is not for the EEOC to rewrite the will of Congress, but instead the EEOC
should defer “to Congress who, as the author of Title VII, has defined the scope of its
protection.” Id.
The fact that bills have been introduced that would amend Title VII to include protections
based on sexual orientation and gender identity further indicates that Congress does not believe
Title VII currently does so. For example, the Employment Non-Discrimination Act, introduced
repeatedly but never passed by Congress, was originally introduced to protect employees from
employment discrimination based on sexual orientation, and the transgendered community
lobbied to include sexual identity as well. Phyllis Randolph Fry, The International Bill of
Gender Rights vs. the Cider House Rules: Transgenders Struggle With the Courts Over What
Clothing They Are Allowed to Wear on the Job, Which Restroom They Are Allowed to Use on the
Job, Their Right To Marry, and the Very Definition of Their Sex, 7 WM. & MARY J. WOMEN & L.
133, 177 (2000). And the recently introduced Equality Act of 2015 makes the fact that current
law does not prohibit discrimination on the basis of sexual identity explicit. H.R. 3185, 114th
Cong. (2015). The Equality Act would amend Title VII to replace the word “sex” with “sex,
sexual orientation, and gender identity.” Id. Section 2 of the Act, a list of Congressional
findings, expressly notes the “absence of explicit prohibitions of discrimination on the basis of
sexual orientation and gender identity under Federal statutory law.” Id.
This Court should not follow the EEOC’s mistaken notion that Title VII protects on the
basis of transgendered status. See R.G. & G.R. Harris, 100 F. Supp. 3d at 599 (in reviewing an
EEOC holding, the court stated, “there is no . . . Supreme Court authority to support the EEOC's
position that transgender status is a protected class under Title VII.”). Further, the EEOC should
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not be afforded deference in this instance because its reading of Title VII is simply not
reasonable. It is well-established that, “[w]hen a court reviews an agency's construction of the
statute which it administers, it is confronted with two questions.” Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). The first is whether Congress has “directly
spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress.” Id., at 842–843. However, “if the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the agency's answer is based on a
permissible construction of the statute.” Id. at 843. The ultimate determination is whether
Congressional intent is clear; if not, “agencies must [still] operate ‘within the bounds of
reasonable interpretation.’” Utility Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427, 2442 (2014)
(quoting City of Arlington, Tx. v. F.C.C., 133 S. Ct. 1863, 1868 (2013)). The interpretation is
only reasonable if it follows the plain language of the statute. Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945). The agency “cannot change the law.” Utility Air, 134 S. Ct. at
2446.
Here, the EEOC has unreasonably extended the clear intent of Congress when it included
“sex” in the list of protected classes in Title VII. As explained supra, Congress meant a binary
definition when it enacted the Civil Rights Act in 1964. It has since attempted to amend Title
VII to include gender identity. The most recent attempt clearly states that current federal statutes
do not protect on that basis. The EEOC has thus gone against the express intent of Congress, has
unreasonably construed the plain language of Title VII, and its decision in Macy thus should be
accorded no deference under Chevron.
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B. Beetz Had Legitimate Business Reasons for Decisions Related to Rite’s Employment
That Were Not Based on Rite’s Sex and Were Not Pre-textual.
Even if the plaintiff in a Title VII case can prove a prima facie case, the burden under
McDonnell Douglas then shifts to the employer to show that the action was taken for a
“legitimate, non-discriminatory reason.” Plotke, 405 F.3d at 1099. Crucially, the employer has
only the burden of production, not persuasion, and “need only produce evidence of a
nondiscriminatory reason.” Green, at 988. See also Tx. Dept. of Cmty. Affairs v. Burdine, 450
U.S. 248, 254-55 (1981). As the district court noted in this case, “Rite was working in a
position that required a lot of personal contact, building of personal relationships,”
communicating with “individuals who might become customers or investors.” Rite, 585 F. Supp.
3d at 16. Beetz CEO Andre Young knows his company and its needs. He had every right to
place Rite within the organizational structure in a way “best-suited to sustain the brand of his
company.” Id. at 17. In so doing, Rite was not discriminated against, because she “continued to
remain employed . . . in a lateral transfer . . . [and] permitted to present her female identity.” Id.
at 16-17. Instead, Young exercised his right to operate his business in its best interests.
Young’s decision to promote a co-worker was indeed a legitimate decision based on the
needs of his business. The Executive Distributor position was an extremely important position
for Beetz. Id. The employee promoted, O’Shay Jackson, had the requisite skills and talents in
Young’s estimation. Id. at 7. His MBA with concentration in finance made him “valuable in
understanding and growing Beetz’s net worth,” and he had an “impressive sales record” as a
sales consultant. Id. at 6. This was a legitimate business decision.
Similarly, Young’s decision to transfer Rite to Graphic Design was a legitimate business
decision. Rite had an MBA with a concentration in marketing, making her valuable in her new
department. Id. at 2. As explained supra, this decision did not constitute sex discrimination
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under Title VII because it was not related to any preconceptions by Young about Rite’s level of
masculinity as a man. It instead had to do with Young’s legitimate need to grow his business.
As the appellate court so aptly noted, this Court “is in no position to act as Beetz and make an
employment decision about Rite.” Rite, 575 F. 3d at 191. Since no sex discrimination occurred
under Title VII, this Court should allow Young to operate his business as he sees fit.
Further, these legitimate business reasons were not pretextual. Under McDonnell
Douglas Rite would have to prove that Young’s decisions were mere pretext for what was really
intentional sex discrimination. Green, at 986. One way would be to prove that Young’s
proffered reasons were false. Id. at 988. Another way would be to show that sex was in fact a
motivating factor under Price Waterhouse. Id. at 990. But Rite can point to no evidence that
Young made employment decisions for any but legitimate business reasons, nor that he made
any business decisions based on her lack of masculinity as a man, as explained supra. Young
made his decisions based on his knowledge of the company and its needs. His decisions were in
no way “because of” Rite’s sex. They were legitimate business reasons that were not pretextual.
II.
RITE DOES NOT HAVE A CLAIM UNDER THE FMLA BECAUSE SHE DID NOT
SUFFER FROM A SERIOUS HEALTH CONDITION.
The FMLA was signed into law by President Clinton early in 1993. Family and Medical
Leave Act of 1993, PL 103–3, February 5, 1993, 107 Stat. 6 (1993). It was passed for the
purpose of balancing the needs of employees and the needs of employers. 29 U.S.C. § 2601(b)
(2012). The balancing of these needs is intended to be carried out in a way that promotes equal
treatment of both men and women. Id.
The FMLA allows eligible employees to take leave for reasons enumerated in 29 U.S.C.
§§ 2612(a)(1)(A)-(E). These reasons include the birth of a child, adoption of a child, qualifying
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urgent needs determined by regulation, and because of a serious health condition of the
employee or close family members. Id. Here, it is undisputed that Rite is an eligible employee
under the FMLA; Rite would be entitled to leave if she were affected by one of the reasons
enumerated in the statute. The specific provision at issue in this action is 29 U.S.C. §
2612(a)(1)(D) which instructs that an employee is entitled to leave, “[b]ecause of a serious health
condition . . . .” Id.
This analysis will show that Rite did not suffer from a serious health condition as defined
by the FMLA and that she was therefore not entitled to leave under the statute. Rite has not
shown that she had a serious health condition. See CORPORATE LEGAL COMPLIANCE HANDBOOK
§ 39.09 (2014), available at 2014 WL 4221766 (describing six categories of conditions which
can be considered serious health conditions). The analysis below describes the failure to show a
serious health condition in more detail.
A. Rite’s Gender Dysphoria is Not a Serious Health Condition Under the FMLA.
In order to qualify as a serious health condition under the FMLA and to entitle a plaintiff
to job-protected leave under the act, the plaintiff must show that she fulfills the language of 29
U.S.C. § 2612(a)(1)(D). This section of the statute states: “an eligible employee shall be entitled
to . . . leave . . . [b]ecause of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.” Id. The Lackey court emphasized that
“[n]ot all medical problems are subject to the FMLA” and noted further “[i]t is Plaintiff's burden
to establish that his medical problems are severe enough to warrant the FMLA protection.”
Lackey v. Jackson Cnty., 104 F. App’x 483, 490 (6th Cir. 2004).
The phrase serious health condition is a term of art which has a specific definition under
the FMLA. 29 U.S.C. § 2611(11). Importantly, a serious health condition is one “that involves . .
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. inpatient care . . . or . . . continuing treatment by a health care provider.” Id. See also Phillips v.
Quebecor World RAI, Inc., 2005 WL 6126702, at *7 (E.D. Wis. Aug. 16, 2005) aff'd, 450 F.3d
308 (7th Cir. 2006) (holding that a failure to show inpatient care or continuing treatment will
require a grant of summary judgment in favor of the employer). Both inpatient care and
continuing treatment are defined in the Code of Federal Regulations. See 29 C.F.R. § 825.11415. Even if the employee’s condition qualifies under the appropriate definitions as a serious
health condition, it must also prevent the employee from performing their work. Ford-Evans v.
United Space Alliance LLC, 329 F. App'x 519, 528 (5th Cir. 2009). See also 29 U.S.C. §
2612(a)(1)(D). Accordingly, an employee must show either inpatient care or continuing
treatment in addition to showing that the condition prevented the employee from performing the
functions of her position.
Here, Rite has failed to show either inpatient care or continuing treatment as defined by
the Code of Federal Regulations. Additionally, Rite has failed to show that she was unable to
perform the functions of her position. Therefore, she has failed to show a serious health
condition under the FMLA.
1. Rite’s gender dysphoria did not involve inpatient care.
According to the Code of Federal Regulations, “[i]npatient care means an overnight stay
in a hospital, hospice, or residential medical care facility, including any period of incapacity . . ,
or any subsequent treatment in connection with such inpatient care.” 29 C.F.R. § 825.114
(emphasis added). Courts have held to this definition. Compare Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 304 (3d Cir. 2012) (finding a serious health condition where
the patient stayed in the hospital for one week) with Bonkowski v. Oberg Indus., Inc., 787 F.3d
190, 210 (3d Cir. 2015) (finding no serious health condition where the patient was admitted and
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discharged from the hospital during the same calendar day). Accordingly, in order for Rite’s
gender dysphoria to be a serious health condition under the FMLA as a result of inpatient care,
she must have been admitted to a health care facility on one day and then discharged on or after
the following day.
Rite’s gender dysphoria, distinct from her elective surgery, did not involve inpatient
treatment. The district court rightly held that the gender reassignment surgery was an elective
one which was “not necessary to cure a serious health condition.” Rite, 585 F. Supp. 3d at 21. In
accordance with this holding, the underlying gender dysphoria must involve inpatient treatment
in order to become a serious health condition under this specific regulatory definition. There are
no facts in the record which show an overnight hospitalization prior to the elective surgery. Id. at
3-9. Therefore, Rite’s gender dysphoria did not involve inpatient treatment.
Assuming that the gender reassignment surgery was not an elective procedure, the district
court erred in asserting that Rite’s surgery involved inpatient care. Here, we know from the facts
that Plaintiff underwent a gender reassignment surgery. Id. at 7. Only the term “gender
reassignment surgery” is used and a more specific term for a medical procedure is not provided
by Rite. Id. at 2, 5-9. Additionally, we are not shown in the record when Rite was admitted and
discharged from the hospital. Id. at 3-9. These omissions are important, because they are the
plaintiff’s burden to overcome. Johnson v. Dollar Gen., 880 F. Supp. 2d 967, 985-87 (N.D.
Iowa 2012) aff'd, 508 F. App'x 587 (8th Cir. 2013).
In the case at bar, the procedures Rite underwent have not been shown to be inpatient
care. Importantly, there are a few different types of procedures which can be considered a gender
reassignment surgery. See Surgical Options, CENTER OF EXCELLENCE FOR TRANSGENDER
HEALTH, http://transhealth.ucsf.edu/trans?page=protocol-surgery (last accessed February 16,
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2016) (describing the surgical procedures of orchiectomy, vaginoplasty, and penectomy as
options for genital surgeries involved in a male to female transition). Accordingly, “[s]ome
transwomen will have [an orchiectomy] without a vaginoplasty or penectomy.” Id. An
orchiectomy is regarded as an outpatient procedure. See Orchiectomy, ENCYCLOPEDIA OF
SURGERY, http://www.surgeryencyclopedia.com/La-Pa/Orchiectomy.html (last accessed
February 15, 2016) (“Orchiectomy . . . is most often done as an outpatient procedure in a urology
clinic or similar facility.”). Therefore, a patient undergoing an orchiectomy to advance their
transition from male to female would not require inpatient treatment. Since Rite has not shown
what procedure was conducted, it is improper to assume that inpatient care was required.
Additionally, breast augmentations and facial surgeries are also commonly performed as
outpatient procedures. See Breast Implants, ENCYCLOPEDIA OF SURGERY,
http://www.surgeryencyclopedia.com/A-Ce/Breast-Implants.html (last accessed February 15,
2016) (“[Breast augmentation] is typically performed as an outpatient procedure.”); Plastic,
reconstructive, and cosmetic surgery, ENCYCLOPEDIA OF SURGERY,
http://www.surgeryencyclopedia.com/Pa-St/Plastic-Reconstructive-and-Cosmetic-Surgery.html
(last accessed February 15, 2016) (“Some operations, such as nose reshaping . . . can be done as
outpatient surgery under local anesthesia.”). Because all these procedures could be outpatient
procedures and Rite has not provided evidence of inpatient care; therefore Rite has failed to
show that she underwent inpatient care even if the surgery is presumed to be non-elective.
2. Rite’s gender dysphoria did not involve continuing treatment.
Continuing treatment is defined in 29 C.F.R. § 825.115. Under this definition, continuing
treatment can arise when a plaintiff shows any of the requisite conditions written in in 29 C.F.R.
§§ 825.115(a)-(e).
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Under 29 C.F.R. § 825.115(a), a plaintiff must show “[a] period of incapacity of more
than three consecutive, full calendar days . . . .” A plaintiff must also show that the condition also
involves at least two additional treatments “‘within 30 days of the first incapacity’” or a
“‘regiment of continuing treatment under the supervision of a health care provider.’” Pollard v.
N.Y. Methodist Hosp., 2015 WL 5719617, at *6 (E.D.N.Y. Sept. 29, 2015) (quoting 29 C.F.R. §§
825.115(a)(1)–(2)). In this case, Rite has not shown that she required any continuing treatment or
that she received any treatment after January 30, 2015. Rite, Inc., 585 F. Supp. 3d at 9-10.
Additionally, “‘[a]n incapacity requires absence from work as a necessity or an inability
to perform daily activities.’” Spears v. La. Dep't of Pub. Safety & Corr., 2 F. Supp. 3d 873, 881
(M.D. La. 2014) (quoting Meadows v. Tx. Fed. Credit Union, No. 5:05CV158, 2007 WL
192942, at *23 (E.D. Tex. Jan. 22, 2007)). See also Spears, 2 F. Supp. 3d at 881 n.51. Here, Rite
has not shown a period of incapacity for something other than an elective surgery. Because the
procedure was an elective one, a resulting period of incapacity was not necessary. Therefore, she
did not have a necessary incapacity. Accordingly, Rite has failed to show that she had a
necessary incapacity which required continuing treatment under the definition written in 29
C.F.R. § 825.115(a). See Pollard, 2015 WL 5719617, at *10-11.
29 C.F.R. § 825.115(b) requires pregnancy or prenatal care. Plaintiff has not shown
pregnancy or prenatal care and therefore cannot establish continuing treatment under this
provision.
Continuing treatment may be shown by establishing a chronic condition under 29 C.F.R.
§ 825.115(c). A chronic condition requires an incapacity from a condition that: “(1) Requires
periodic visits . . . for treatment by a health care provider . . . ; (2) Continues over an extended
period of time . . . ; and (3) May cause episodic rather than a continuing period of incapacity
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(e.g., asthma, diabetes, epilepsy, etc.).” Id. Here, Rite has again failed to show any incapacity
which stemmed directly from her gender dysphoria. Also, Rite’s gender dysphoria did not
involve episodic incapacities similar to asthma, diabetes, or epilepsy. As a result, Rite has not
established a chronic condition in order to meet the requirements for continuing treatment.
A plaintiff is also allowed to establish continuing treatment by showing a permanent
condition under 29 C.F.R. § 825.115(d). To meet the requirements of this provision, the plaintiff
must show that she had “[a] period of incapacity which is permanent or long-term due to a
conditions for which treatment may not be effective.” Id. Additionally, the plaintiff must have
been “under the continuing supervision of . . . a health care provider.” Id. This section then
explicitly outlines examples such as “Alzheimer’s, a severe stroke, or the terminal stages of a
disease.” Id. Here, Rite has again failed to show a period of incapacity which is directly related
to her gender dysphoria. This alone precludes her from qualifying under the permanent condition
element of continuing treatment. Furthermore, her gender dysphoria, although permanent, is not
a condition for which treatment was ineffective. Rite’s treatment was effective and her condition
improved greatly after receiving treatment. Rite, 585 F. Supp. 3d at 5. Additionally, Rite’ gender
dysphoria is not similar to Alzheimer’s or other terminal conditions.
Last, a plaintiff may attempt to show continuing treatment by showing a condition which
requires multiple treatments according to the language of 29 C.F.R. § 825.115(e). This section
only covers multiple absences for: “(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity of more than three consecutive,
full calendar days in the absence of medical intervention or treatment, such as cancer . . . , severe
arthritis . . . , or kidney disease . . . .” Id. Here, Rite has not shown that she suffered from an
accident or injury. Additionally, her gender dysphoria was not likely to result in a period of
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incapacity of more than three consecutive days. Gender dysphoria is also dissimilar from the
conditions provided as examples in this section. Accordingly, the facts show that Rite as failed to
meet the definition provided in 29 C.F.R. § 825.115(e).
B. Rite’s Gender Reassignment Surgery is Exempted From Protection Under the FMLA.
Not all surgical procedures are covered by the FMLA. See Roche v Saint Lukes Shawnee
Mission Health Sys., Inc., 46 F. App’x 867 (8th Cir. 2002) (holding that “elective outpatient eye
surgery” to correct nearsightedness was not a serious health condition under the FMLA.)
Additionally, “[c]onditions for which cosmetic treatments are administered . . . are not serious
health conditions unless inpatient hospital care is required or unless complications develop.” 29
C.F.R. § 825.113(d). Gender reassignment surgeries are an optional procedure. See GLAAD
Media Reference Guide – Transgender Issues, GLAAD,
http://www.glaad.org/reference/transgender (last accessed February 15, 2016) (“Not all
transgender people choose to, or can afford to, undergo medical surgeries.”).
Rite’s condition and need for surgery are distinct from other influential cases on this
issue. In O’Donnabhain v. Commissioner of Internal Revenue, 134 T.C. 34 (2010), the plaintiff
would have been unable to “function normally in society . . .” without a gender reassignment
surgery. Id. at 40. In Kosilek, the district court found that the plaintiff was “at substantial risk of
serious harm and that sex reassignment surgery [was] the only adequate treatment for his
condition.” Kosilek v. Spencer, 889 F. Supp. 2d 190, 197 (D. Mass. 2012), rev'd, 774 F.3d 63
(1st Cir. 2014). There is no indication in the record that Rite’s gender dysphoria was similar to
that found in O’Donnabhain or Kosilek. Her condition was not likely to result in self-harm or
the inability to function normally in society. Rite, 585 F. Supp. 3d at 3-9. Instead, “her mental
condition improved significantly” as a result of her non-surgical treatment. Id. at 5.
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Because Rite’s procedure was not preceded by an intense need and it was an optional
procedure it should be exempted from FMLA coverage as an elective cosmetic procedure.
C. Even if Plaintiff’s Surgery is Not Exempted, Plaintiff Has Still Failed to Show That
She Suffered From a Serious Health Condition Under the FMLA for the Duration of
Her Leave.
The FMLA does not provide unlimited leave during the available twelve weeks. Instead,
the FMLA provides leave for the amount of time in which an employee suffers from a serious
health condition. The statute does not offer protection to employees who take leave while they
are not incapacitated by a serious health condition. See Tillman v. Ohio Bell Tel. Co., 545 F.
App'x 340, 554 (6th Cir. 2013) (“For [plaintiff], that means he needed to qualify for FMLA leave
on or about the dates in question.”) (holding that the employer was entitled to summary
judgement where the employee made no showing of an incapacity related to his condition during
those absences). The reasoning in Tillman should be applied here, meaning that Rite is not
entitled to leave under the FMLA during the time she is not incapacitated.
Assuming arguendo that the surgery is covered by the FMLA, Rite may be able to show
that the absences during the time period beginning on January 30th and ending on February 6th
were an incapacity which would result in a serious health condition and entitlement to leave.
However, this showing is not present in the record. The contents of the medical certification
submitted by Rite on November 8th are unknown. Rite, 585 F. Supp. 3d at 8. As a result, Rite has
failed to show that she was unable to work at any time before, during, or after her sex
reassignment surgery.
Making another assumption, that the medical certification mirrors the recovery
instructions, this certification would still not show that Rite was incapacitated during the duration
of her leave. Dr. Dreigh instructed Rite that “she should stay in bed for at least one week.” Id. at
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9. If any incapacity exists, then it only exists for the week immediately following the sex
reassignment surgery on January 30th. As of February 6th, Rite was no longer incapacitated and
therefore no longer suffering from a serious health condition. Accordingly, she had exhausted all
of the FMLA leave to which she was entitled and her absences after February 6th do not fall
under the protection of the FMLA.
CONCLUSION
For the foregoing reasons, this Court should reverse the appellate court’s decision and
dismiss the Title VII and FMLA claims by Ericka Rite.
Respectfully submitted,
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Attorneys for Petitioner, Beetz, Inc.
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