TEAM 23 Attorneys for Petitioner UNITED STATES SUPREME COURT

TEAM 23
Attorneys for Petitioner
UNITED STATES SUPREME COURT
SPRING TERM, 2016
BEETZ, INC.
DOCKET NO. 16-24
Petitioner,
against
ERIKA RITE,
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE UNITED
STATES
BRIEF FOR PETITIONER
Respondent.
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.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED................................................................................................ i
TABLE OF AUTHORITIES ............................................................................................. iv
I.
OPINIONS BELOW........................................................................................................... 1
II.
STATEMENT OF THE CASE........................................................................................... 1
A.
B.
Statement Of Facts .................................................................................................. 1
1.
The Parties .................................................................................................. 1
2.
Jackson’s Promotion ................................................................................... 2
3.
Rite’s Transition.......................................................................................... 2
4.
Rite’s Multiple Surgeries & Extended Absences........................................ 3
Procedural History .................................................................................................. 4
1.
District Court Decision ............................................................................... 4
2.
Court of Appeals Decision .......................................................................... 4
III.
SUMMARY OF THE ARGUMENT ................................................................................. 5
IV.
LEGAL ARGUMENTS...................................................................................................... 6
A.
Rite Does Not Have A Lawful Claim Under § 703 of Title VII............................. 6
1.
2.
Title VII Does Not Encompass Transgender Protection............................. 6
a.
Legislative History, Intent, And Case Law Are Clear That Title
VII’s Definition Of ‘Sex’ Does Not Include Transgender
Protection. ....................................................................................... 6
b.
The EEOC’s New Opinions Are Not Legally Binding. .................. 8
c.
Rite’s Claim Of Discrimination Solely Based On Her Transgender
Status Fails Because Being Transgender Is Not Protected Under
Title VII. ....................................................................................... 12
Rite’s Claim For Sex Discrimination Fails As A Matter of Law. ............ 13
a.
Rite Cannot Establish A Prima Facie Case For Sex Discrimination
Because There Was No Adverse Action. ...................................... 15
b.
Rite Cannot Establish A Prima Facie Case For Sex Discrimination
Because She Was Not Treated Differently From A Similarly
Situated Employee. ....................................................................... 16
ii
c.
3.
B.
Rite’s Claim For Punitive Damages Fails As A Matter Of Law Because
She Cannot Show Any Evidence Of Malice, Oppression, Or Fraud. ....... 19
Rite Was Not Entitled To Job-Protected, Unpaid Leave Under The FMLA
Because She Was Not Afflicted With A “Serious Health Condition.”................. 20
1.
2.
V.
Rite Cannot Show That Beetz’s Legitimate, Non-Discriminatory
Reason For Her Lateral Transfer Was A Pretext. ......................... 17
Gender Dysphoria Is Not A “Serious Health Condition” Under The
FMLA. ...................................................................................................... 20
a.
Legislative History And Congressional Intent Indicate That Gender
Dysphoria Does Not Qualify As A “Serious Health Condition.” . 21
b.
The Department Of Labor Has Never Indicated That Gender
Dysphoria Qualifies As A “Serious Health Condition” Warranting
FMLA Leave................................................................................. 23
Even If Gender Dysphoria Was A “Serious Health Condition,” Rite’s
Gender Reassignment Surgery Did Not Justify Medical Leave Under
FMLA. ...................................................................................................... 23
a.
Rite’s Gender Dysphoria Did Not Rise To The Level Of Being A
Serious Health Condition. ............................................................. 24
b.
Even If Gender Dysphoria Is Considered A “Serious Health
Condition,” Rite’s Gender Reassignment Surgery Was Still Not
Medically Necessary. .................................................................... 25
c.
A Letter Written By The U.S. Office Of Personnel Has No Legal
Effect On The FMLA Requirements For Private Employers. ...... 26
d.
Rite Waived Any Rights She May Have Had Under FMLA By
Failing To Fulfill Notification And Procedural Obligations Under
FMLA And Beetz’ Employee Leave Agreement. ........................ 27
e.
Rite Waived Any Claim She May Have Had Against Beetz For
FMLA Interference By Being Absent Longer Than The Amount
Of Time Recommended By Her Doctor. ...................................... 28
3.
Rite Was Not Entitled To Job-Protected, Unpaid Leave Because Her
Breast Augmentation And Facial Surgeries Were Purely Elective And
Cannot Be Covered By The FMLA. ......................................................... 28
4.
A Decision In Beetz’s Favor Would Serve The Ultimate Purpose Of The
FMLA And Protect Covered Employers’ Legitimate Interests. ............... 29
CONCLUSION ................................................................................................................. 30
iii
TABLE OF AUTHORITIES
Cases
Ackerman v. Western Electric Co., 643 F.Supp. 836 (N.D. Cal. 1986) ........................................ 21
Ackerman v. Western Electric Co., 860 F.2d 1514 (9th Cir. 1988) .............................................. 21
Altman v. PNC Mortg., 850 F. Supp. 2d 1057 (E.D. Cal. 2012) .................................................. 20
Ayromlooi v. St. Luke’s Roosevelt Hosp., 2005 N.Y. Misc. LEXIS 1919 (N.Y. Sup. July 25,
2005) ......................................................................................................................................... 16
Barker v. Rooms to Go Furniture Corp., 375 Fed. Appx. 966 (11th Cir. 2010) .......................... 25
Bellanger v. H & E Healthcare, L.L.C., No. CIV.A. 10-0667-BAJ, 2012 WL 4325633 (M.D. La.
Sept. 20, 2012) .......................................................................................................................... 30
Blizzard v. Marion Tech. Coll., 698 F.3d 275 (6th Cir. 2012)................................................ 19, 20
Burrows v. Coll. Of Cent. Florida, 2015 WL 5257135 (M.D. Fla. Sept. 9, 2015) ....................... 12
Chandler v. Specialty Tires of Am. (Tennessee) Inc., 283 F. 3d 818 (6th Cir. 2002) ................... 25
Chevron USA, Inc. v. Natural Resources Defense Council, Inc.. 467 U.S. 837 (1984) ........... 9, 22
DiCola v. SwissRe Holding (N. Am.), Inc., 996 F.2d 30 (2d Cir. 1993) ....................................... 15
E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244 (1991) ............................................................... 10
E.E.O.C. v. R.G. & G. R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 592 (2015)............. 13, 14
Enowmbitang v. Seagate Tech., Inc., 148 F.3d 970 (8th Cir. 1998) ............................................. 16
Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007) ................................................................ 8
Gay v. Gilman Paper Co., 125 F.3d 1432 (11th Cir. 1997).......................................................... 29
General Electric Co. v. Gilbert, 428 U.S. 125 (1976) .................................................... 8, 9, 10, 13
Hodgens v. General Dynamics Corp., 144 F. 3d 151 (1st Cir. 1998)........................................... 23
Honda Motor Co. v. Oberg, 114 S. Ct. 2331 (1994) .................................................................... 20
Hopkins v. Electric Data System Corp., 196 F.3d 655 (6th Cir. 1999) ........................................ 17
Kalsi v. N.Y.C. Transit Auth., 189 F.3d 461 (2d Cir. 1999).......................................................... 16
Kalsi v. N.Y.C. Transit Auth., 62 F. Supp. 2d 745 (E.D.N.Y. 1998) ............................................ 16
Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672 (7th Cir. 1997) ................................... 15
iv
Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6th Cir. 1996) ......................................... 17
Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999) ....................................................... 20, 21
Kosilek v. Spencer, 774 F.3d 63, 96 (1st Cir.) .............................................................................. 26
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .................................................... 14, 15
Ngo v. Reno Hilton Resort Corp., 156 F.3d 988 (9th Cir. 1998) .................................................. 20
Norsworthy v. Beard, 74 F. Supp. 3d 1100 (N.D. Ca. 2014) ........................................................ 27
Norsworthy v. Beard, 87 F. Supp. 3d 1104 (N.D. Ca. 2015) ........................................................ 27
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ................................................................... 7, 8
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) ........................................... 19
Rhoads v. Federal Deposit Ins. Corp., 257 F.3d 373 (4th Cir. 2001) .......................................... 22
Rite v. Beetz, Inc., 575 F. 3d 185 (13th Cir. 2015) ........................................................... 25, 26, 27
Rodriguez v. Smithfield Packing C. In Company., 545 F. Supp. 2d 508 (D. Md. 2008) .............. 28
Saulsberry v. St. Mary’s Univ. of Minn., 318 F.3d 862 (8th Cir. 2003) ....................................... 17
Schoonover v. Schneider Nat. Carriers, Inc., 492 F. Supp. 2d 1103 (S.D. Iowa 2007) ............... 15
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............................................................................... 9
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ..................................................................... 7
Smith v. County of Hamilton, 34 Fed. Appx. 450 (6th Cir. 2002) ................................................ 17
Smith v. Super Serv., Inc., 68 F. App’x 659 (6th Cir. 2003) ........................................................... 7
Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) ..................................................... 13
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) .................................................................. 15
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) .............................................. 14, 15
Twigg v. Hawker Beechcraft Corp., 659 F. 3d 987 (10th Cir. 2011) ........................................... 29
Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ...................................................... 11, 13
United States v. Mead Corp., 533 U.S. 218 (2001) ........................................................................ 9
Vasconello v. Cybex Intern, 962 F. Supp. 701 (D. Md. 1997) ...................................................... 26
Wedow v. City of Kansans City, 442 F.3d 661 (8th Cir. 2006)..................................................... 16
Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) ..................................................... 10
v
Statutes
29 C.F.R. § 825.302(c).................................................................................................................. 28
29 C.F.R. § 825.303(f) .................................................................................................................. 28
29 C.F.R. § 825.312 ...................................................................................................................... 29
29 U.S.C. § 2611(11) .................................................................................................................... 23
29 U.S.C. § 2612(a)(1).................................................................................................................. 25
29 U.S.C. § 2612(a)(D) ................................................................................................................. 22
29 U.S.C. § 2612(e)(2)(A) ............................................................................................................ 28
29 U.S.C.A. § 2653 ....................................................................................................................... 24
29 U.S.C.A. §§ 26(a)(1)(D) .......................................................................................................... 22
29 U.S.C.A. §§ 2615(a)(1) ............................................................................................................ 22
29. U.S.C. 2601(b) (2002) ............................................................................................................ 30
42 U.S.C. § 2000e-2(a) (1964)........................................................................................................ 6
Administrative Decisions
Baldwin v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2015) .................... 6, 11
Macy v. Holder, EEOC DOC 0120120821, 2012 WL 1435995 (Apr. 20, 2012)................... 11, 12
vi
I.
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 575 F.3d
185 (13th Cir. 2015) and is included in the record at pages 22-30.
II.
STATEMENT OF THE CASE
A.
Statement Of Facts
1.
The Parties
Petitioner Beetz, Inc. is an American company headquartered in Kompton, Wagner. R. at
3. Founded and managed by CEO Andre Young, the company is known as a top level developer,
producer, and distributer of world-class consumer headphones, earphones, and speakers. Id.
Young sought to build an organization of dependable and loyal individuals who would exude an
image of sophistication and class. Id. The Beetz sales department, in particular, was expected to
build lasting relationships and consistently meet client expectations.
Respondent Erika Rite is a former employee of Beetz who started as a sales consultant in
Beetz’s sales department in 2005. R. at 3. At the time she began working at Beetz, she identified
as Erik Rite and presented herself as a man, as she had her whole life. R. at 2. Because she
consulted with company investors and met with representatives of companies and agencies
selling Beetz products, Rite’s duties necessarily involved extensive client contact. Over the next
few years Rite excelled professionally, received a promotion to Lead Sales Consultant, and
developed strong client connections. However, according to one performance review, Rite lacked
initiative and could “still improve on [her] engagement and initiative with the department,”
demonstrating that this was an ongoing issue. R. at 31. Rite received this performance review in
1
2013, one year before the Andre Young promoted O’Shay Jackson to the Executive Distributer
position.
2.
Jackson’s Promotion
In January 2014, Andre Young interviewed both Respondent and another sales
consultant, O’Shay Jackson to fill the position of Executive Distributer which had just opened
up. R. at 7. The position came with an increase in pay and involved being the primary point of
contact for all Beetz sales and distribution. R. at 6.
In February 2014, Andre Young announced that the new position would go to O’Shay
Jackson, who had extraordinary skills, an impressive sales record, and an MBA in finance. R. at
6-7. Jackson’s finance background made him a valuable asset in understanding and growing
Beetz’s net worth. Although Rite also had an MBA, she did not have the background in finance
that Young prized. Respondent congratulated Jackson on getting the position. R. at 8.
3.
Rite’s Transition
When Andre Young interviewed Rite in January of 2014, Rite informed him for the first
time that she identified as female, was under a physician’s care, and was receiving hormone
replacement therapy. R. at 7. She also mentioned plans of possibly undergoing gender
reassignment surgery and asked that she be called “Erika” from that point forward. Id. The
record does not indicate Rite ever discussed with Young, Dr. Warren Gee’s 2012 diagnosis of
her gender dysphoria.
In early 2014, Rite then began presenting as a woman by wearing feminine clothing,
growing out her hair, painting her nails and wearing makeup. Id. This naturally sparked some
gossip in the office. Rite was then transferred to a lateral position in the graphic design
department. R. at 8. She continued to receive the same salary. Young indicated that the reason
2
for her transfer was to relocate her to a department with less public visibility in her opinion as it
was in the company’s best interest. Id.
In March 2014, Rite discussed her plans for gender reassignment surgery with Tamika
Woods, the Director of Human Resources at Beetz. Id. Woods referred Rite to the Beetz
Employee Handbook for information about medical and sick leave. R. at 9. The Handbook
detailed the procedures for obtaining family and medical leave under the Family and Medical
Leave Act of 1993 (“FMLA”) and other unpaid leave. Id. Although Rite discussed her plans for
surgery, she never told Woods she had gender dysphoria or any of the symptoms associated with
it.
4.
Rite’s Multiple Surgeries & Extended Absences
In November 2014, Rite applied for FMLA leave and at Beetz’s request, submitted a
medical certification form signed by Dr. Romel Dreigh, who was to perform the surgery. R. at 9.
Without having attained approval for FMLA leave, on January 30, 2015, Rite chose to undergo
not only gender reassignment surgery, but also breast augmentation, and other procedures to
“feminize” her facial features. Id. Rite had not discussed her plans for breast augmentation and
other facial surgery with Ms. Woods or Andre Young, nor had she sought FMLA leave for those
surgeries.
On February 1, 2015 Ms. Woods left a voicemail for Rite informing her that her FMLA
leave request had been denied and, because Rite had exhausted her accrued paid sick leave,
further absences would result in disciplinary action. R. at 10. The record does not indicate that
Rite made any effort to contract Ms. Woods after receiving the message. Although Dr. Dreigh
advised Rite that she could return to her daily activities within one to two weeks post surgery,
Rite did not plan to return to her work, in an office, for about five weeks. R. at 10. On February
3
27, 2015, after Rite had missed over three weeks of work without approval, Ms. Woods informed
Rite of her termination due to her continued absence. Id.
B.
Procedural History
1.
District Court Decision
On March 13, 2015, Rite filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging that Beetz had engaged in sex discrimination on the basis of
transgender identity. The EEOC issued a Right to Sue Notification with its determination letter.
On April 3, 2015, Rite filed suit against Beetz Inc. in the Wagner District Court, claiming a
violation of both Title VII and the FMLA.
The district court held that Beetz’s decision not to promote Erika Rite, even if based on
Rite’s transgender identity, does not constitute discrimination under Section 703 of Title VII of
the Civil Rights Act of 1963. The district court also held that Appellant’s gender dysphoria does
not qualify as a “serious health condition” under the FMLA. It further held that the gender
reassignment surgery itself constituted elective surgery “not necessary to cure a ‘serious health
condition.’” R. at 21.
2.
Court of Appeals Decision
On December 11, 2015, the Thirteenth Circuit Court of Appeals reversed the district
court’s decision, holding that discrimination resulting from a person’s gender identity is
discrimination “because of sex” under Section 703 of Title VII and that gender dysphoria
qualifies as a “serious health condition” for which gender reassignment surgery may be
medically necessary under FMLA.
4
III.
SUMMARY OF THE ARGUMENT
In February 2015, Rite was terminated for being absent from work for over three weeks
without approval for FMLA or other leave. During this time, Rite obtained gender reassignment
surgery, breast augmentation, and other facial surgery. Rite now brings claims against Beetz,
claiming that she was unlawfully discriminated against based on her transgender status under
Title VII. Rite also claims that she was entitled to job-protected, unpaid leave to undergo gender
reassignment surgery under the FMLA.
Rite’s claim for sex discrimination under Title VII fails because the statute does not
extend to transgender protection. However, even if it did, she cannot offer any evidence of
discriminatory intent or any discriminatory animus towards her whatsoever. Her lateral transfer,
to a position of equal prestige and pay, does not constitute an adverse action. Beetz made an
effort to keep Rite’s talents at the company while balancing that with its own corporate image.
Rite’s FMLA claim fails as a matter of law because her gender dysphoria never rose to
the level of a “serious health condition.” Gender reassignment surgery was not medically
necessary in Rite’s case given her mild symptoms and her unchanged capacity to perform her
job. Breast augmentation and facial surgery to “feminize” her features are unquestionably
elective procedures, uncovered by the FMLA. Furthermore, even if Rite was entitled to covered
leave, she failed to fulfill FMLA notification and procedural requirements, thus waiving any
rights she may have had.
The undisputed facts strongly support a reversal of the Thirteenth Circuit’s decision
below since each of Rite’s causes of action fail as a matter of law.
5
IV.
LEGAL ARGUMENTS
A.
Rite Does Not Have A Lawful Claim Under § 703 of Title VII.
1.
Title VII Does Not Encompass Transgender Protection.
a.
Legislative History, Intent, And Case Law Are
Clear That Title VII’s Definition Of ‘Sex’ Does
Not Include Transgender Protection.
Section 703 of Title VII of the Civil Rights Act of 1964 states that it is unlawful for an
employer to discriminate against any individual because of the person’s race, color, religion, sex,
or national origin. 42 U.S.C. § 2000e-2(a) (1964). There is no indication that Congress intended
to cover sexual orientation or transgender protections in passing the legislation. Even after 40
years of legislative efforts to broaden the scope of Title VII, Congress has refused to do so. The
EEOC has also attempted to erase decades of history of acknowledging that transgender
protection is not included in the scope of Title VII with a simple acknowledgement that its “own
understanding” of the term “sex” has “developed over time.” Baldwin v. Foxx, EEOC DOC
0120133080, 2015 WL 4397641 at *12, n. 13 (July 15, 2015).
Despite recently revised viewpoints from the EEOC, the fact remains that there is no
indication that Congress intended for Title VII to cover sexual orientation or transgender
individuals. As a result, there have been a string of attempts to protect LGBT individuals starting
with the original Equality Act of 1974 introduced by Representatives Bella Abzug and Edward
Koch. This was followed by the various versions of the Employment Non-Discrimination Act
from 1994-2014 and culminated in the currently proposed Equality Act in the 114th Congress.
These efforts demonstrate the common understanding that sexual orientation and transgender
was not within the ambit of Title VII.
The Sixth Circuit has held that sexual orientation is not covered under Title VII. See
Smith v. Super Serv., Inc., 68 F. App’x 659, 664 (6th Cir. 2003). Additionally, in City of Salem
6
the court essentially stated that an employee’s status as a transsexual was irrelevant because the
employee had stated a claim for relief under Title VII for discrimination due to her “appearance
and mannerisms,” that is to say, her gender non-conformity, including discrimination based on
sex stereotypes, and not based on her transgender status. City of Salem, 378 F.3d at 374-75.
This Court’s holding in Price Waterhouse v. Hopkins also demonstrates that “sex” under
Title VII does not encompass sexual orientation or transgender status. 490 U.S. 228 (1989). In
Price Waterhouse, the plaintiff was a female senior manager at an accounting firm who had been
considered but denied partnership. Id. at 231. Various partners who had completed evaluations of
the plaintiff noted that she was “aggressive” or “macho” and that she “overcompensated for
being a woman,” and needed a “course at charm school.” Id. at 235. She was further told that
she would have a better chance at partnership if she would “walk more femininely, talk more
femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id.
Given these facts, the Court held that discrimination based on sex stereotypes was prohibited
under Title VII, construing the term “sex” in Title VII to include both biological sex and
“gender.” Although including “gender” slightly broadened the scope of Title VII, the Court
certainly did not extend the meaning of “sex” to encompass sexual orientation or transgender
statuses.
In addition, the Tenth Circuit definitively declined to extend Title VII protection to
LGBT individuals based merely on sexual or transgender status. In Etsitty v. Utah Transit
Authority, the Court not only noted that it previously had declined to extend Title VII protections
to individuals based on their sexual orientation, but determined that, “[i]n light of the traditional
binary conception of sex, transsexuals may not claim protection under title VII from
discrimination based solely on their status as a transsexual. Rather, like all other employees, such
7
protection extends to transsexual employees only if they are discriminated against because they
are male or because they are female.” 502 F.3d 1215, 1221-22 (2007). In other words, an
employee can only file for a claim of discrimination based on sex for either being male or
female. Given the binary nature of the term “sex,” Respondent cannot allege discrimination for
being both male and female.
b.
The EEOC’s New Opinions Are Not Legally
Binding.
The Supreme Court made clear in General Electric Co. v. Gilbert that Title VII did not
“confer upon the EEOC authority to promulgate rules or regulations pursuant to that Title.” 428
U.S. 125, 141 (1976). The EEOC decisions are “statutorily limited” and are non-binding on
courts. Nana Gyimah-Brempon, et al., Fourth Annual Review of Gender and Sexuality Law:
Employment Law Chapter: Title VII of the Civil Rights Act of 1964, 4 GEO. J. GENDER & L.
563, 574 (2002).
To determine whether the Supreme Court or any lower court will grant deference to the
EEOC’s newly revised views on the scope of Title VII’s protections, courts utilize the two-step
framework for judicial review of agency interpretations established in Chevron USA, Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Under this framework, the
first step is to determine whether Congress has directly spoken to the issue and established a
clear intent with respect to the particular issue in question before the court. Id. If so, the agency
and the court must give effect to the unambiguously expressed intent of Congress. Id. at 842-43.
On the other hand, when a statute is silent or ambiguous, courts move onto step two and
determine whether the agency’s interpretation is based on a permissible construction of the
statute. Id. at 843. This Court held in United States v. Mead Corp. that Chevron deference will
generally only apply when an agency’s statutory interpretation emerged from a formal
8
adjudication, a notice-and-comment rulemaking, or some other comparable exercise of lawmaking authority. 533 U.S. 218 (2001).
Agency interpretations that do not qualify for Chevron deference are entitled only to
“weight” under the analysis set by Skidmore v. Swift & Co., 323 U.S. 134 (1944). The amount of
weight afforded depends “upon the thoroughness evidence in [an agency’s] consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.” Id. at 140. In Gen. Elec.
Co. v. Gilbert, the Court declined to give significant weight to an EEOC opinion which had
interpreted the Title VII prohibition on sex discrimination to encompass disparate treatment of
pregnancy disability in the employment context. 429 U.S. 125, 140-142 (1976). The Court
ultimately held that the EEOC guideline “did not fare well” under the Skidmore approach
because “[the guideline] is not a contemporaneous interpretation of Title VII, since it was first
promulgated eight years after the enactment of that Title. More importantly, the 1972 guideline
flatly contradicts the position which the agency had enunciated at an earlier date, closer to the
enactment of the governing statute.” Id. at 142.
This Court again applied the Skidmore standard in 1991 to the EEOC’s interpretation of
Title VII and whether it applied to U.S. citizens overseas. E.E.O.C. v. Arabian Am. Oil Co., 499
U.S. 244 (1991). There, the Court found that the EEOC’s position again did not satisfy the
Skidmore standard, because the EEOC had changed its position on the issue over time without
support from the plain language of the statute:
The EEOC offers no basis in its experience for the change. The EEOC's
interpretation of the statute here thus has been neither contemporaneous with its
enactment nor consistent since the statute came into law. As discussed above, it
also lacks support in the plain language of the statute. While we do not wholly
discount the weight to be given to the 1988 guideline, its persuasive value is
limited when judged by the standards set forth in Skidmore.
9
Id. at 257-58.
Finally, in a recent case, Young v. United Parcel Service, Inc., this Court again declined
to place significant weight on the EEOC’s determination holding, “it is fair to say the EEOC’s
current guidelines take a position about which the EEOC’s previous guidelines were silent. And
that position is inconsistent with positions for which the Government has long advocated for.”
135 S. Ct. 1338, 1352 (2015).
The EEOC’s newly revised opinions are not afforded any deference under Chevron
because Congress has established a clear intent that Title VII does not protect transgender and
homosexual people against discrimination. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085
(7th Cir. 1984) (“[W]e are constrained to hold that Title VII does not protect transsexuals”).
Further, as the District Court has stated in this case, “Congress has explicitly rejected several
attempts to adopt a more inclusive amendment to Title VII, which would protect transgender and
homosexual people against discrimination.” R. at 13. Recognizing this, Congress has attempted
to protect transgender and homosexual people via new legislation including the Equality Act of
2015. Id. Because Congress has made its intent clear, there is no need to examine the second step
of Chevron. Both the Court and the EEOC are bound to Congress’ intention that Title VII
protections do not extend to transgender individuals.
Even if the Court decides to forego the Chevron test and apply the Skidmore standard, the
Court would not afford the EEOC’s opinion any deference. The EEOC has conceded that its
“understanding of Title VII’s application to sexual orientation discrimination has developed over
time.” Baldwin v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641 at *12, n. 13 (July 15,
2015). This change in opinion culminated in 2012, when the EEOC demonstrated their
completely new approach in its interpretation of Title VII as it pertains to sexual orientation and
10
transgender individuals in Macy v. Holder. There, the EEOC opined that Title VII proscribes
discrimination on the basis of gender identity stating that, “[w]hen an employer discriminates
against someone because the person is transgender, the employer has engaged in disparate
treatment related to the sex of the victim.” Macy v. Holder, EEOC DOC 0120120821, 2012 WL
1435995 at *7 (Apr. 20, 2012) (citations omitted). This incredibly expansive view is not at all
supported by the plain language of Title VII.
It is important to note that because Macy is an EEOC opinion, it has limited authority and
no precedential value outside of the EEOC. See Burrows v. Coll. Of Cent. Florida, 2015 WL
5257135, at *2 (M.D. Fla. Sept. 9, 2015) (denying a motion for reconsideration based on an
EEOC decision, that sexual orientation was covered under the ambit of sex discrimination under
Title VII. The decision was persuasive but not controlling authority).
In deciding whether to afford deference to the EEOC’s opinion in Macy to include
transgender protection under Title VII, this Court should track the holdings in Gilbert, Arabian
Am. Oil, and Young. Like in Gilbert, the EEOC’s new decision flatly contradicts a position it had
enunciated at an earlier date, closer to the enactment of Title VII. Like in Arabian Am. Oil, the
EEOC has changed its position over time with only the loose explanation that its views have
evolved. Further, the EEOC’s new position lacks support in the plain language of the statute as it
did in Arabian Am. Oil. And finally, like in Young, given the complete lack of Congressional
intent and legislative history combined with Congressional efforts to remedy the lack of sexual
orientation and transgender protection under Title VII, the EEOC appears to have taken a
position opposing the belief of the government.
11
Thus, under either standard, the Court should not afford the EEOC’s recently revised
opinion any deference. This is especially true when considering that Congress did not confer the
authority to promulgate rules or regulations to the EEOC. Gilbert, 429 U.S. at 141.
c.
Rite’s Claim Of Discrimination Solely Based On
Her Transgender Status Fails Because Being
Transgender Is Not Protected Under Title VII.
In the absence of controlling precedent, it is clear that Rite does not have a valid claim for
sex discrimination under Title VII on the sole basis of her transgender status. Courts have
continually held that while there may be a valid case for transgendered individuals to have a
valid claim under sex stereotyping, there is no claim where it is solely based on transgender
status. See Ulane v. E. Airlines, 742 F.2d 1081, 1085 (7th Cir. 1984) ("[W]e are constrained to
hold that Title VII does not protect transsexuals"); Sommers v. Budget Mktg., Inc., 667 F.2d 748,
750 (8th Cir. 1982) ("Because Congress has not shown an intention to protect transsexuals, we
hold that discrimination based on one's transsexualism does not fall within the protective
purview of [Title VII]").
This was reiterated in the 2015 case E.E.O.C. v. R.G. & G. R. Harris Funeral Homes,
Inc., 100 F. Supp. 3d 592 (2015). There, the EEOC filed a complaint on behalf of the employee
and alleged that a funeral home illegally fired a funeral director and embalmer weeks after she
had told the funeral home that she would be undergoing a gender transition from male to female.
Id. at 596. The EEOC recognized that transgender status is not a protected class under Title VII
when it stated: “[i]f the EEOC's complaint had alleged that the Funeral Home fired Stephens
based solely upon Stephens's status as a transgender person, then this Court would agree with the
Funeral Home that the EEOC's complaint would fail to state a claim under Title VII. That is
because, like sexual orientation, transgender or transsexual status is currently not a protected
12
class under Title VII.” Id. at 598. As such, the EEOC’s complaint “does not allege that the
Funeral Home fired Stephens based solely upon Stephens's status as a transgender person. The
EEOC's complaint also asserts that the Funeral Home fired Stephens ‘because Stephens did not
conform to the [Funeral Home's] sex- or gender-based preferences, expectations, or
stereotypes.’” Id. at 599. The Court acknowledged that a transgender person, just like anyone
else, can bring a sex stereotyping gender discrimination claim under Title VII but was
unequivocal in reiterating that “[t]here is no Sixth Circuit or Supreme Court authority to support
the EEOC's position that transgender status is a protected class under Title VII.” Id.
Here, Rite does not allege discrimination based on gender stereotyping. Rather, she is
alleging sex discrimination on the basis of her transgender status and indeed only experienced
any sort of alleged negative conduct after she began her transition. Unlike in Price Waterhouse,
there were no stray remarks nor was there any animus towards her based on her gender of male
or female. Rather, Rite claims that any alleged mistreatment was rooted in her transgender status,
not in her femininity as Eric or masculinity as Erika.
2.
Rite’s Claim For Sex Discrimination Fails As A Matter
of Law.
Rite’s claims of sex discrimination is analyzed under the three-step analysis articulated
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). In the first step of this analysis, Rite
bears the initial burden of establishing a prima facie case of discrimination. The elements of a
prima facie case when bringing a Title VII sex discrimination claim are well established.
Schoonover v. Schneider Nat. Carriers, Inc., 492 F. Supp. 2d 1103, 1132 (S.D. Iowa 2007); see
also McDonnell Douglas, 411 U.S. at 802. Rite must “show she (1) was a member of a protected
class, (2) was qualified to do her job, (3) suffered an adverse employment action, and (4) was
13
treated differently from similarly-situated [employees who were not members of her protected
class].” Schoonover, 492 F. Supp. 2d at 1132.
In the second step of the analysis, even if Rite could establish a prima facie case —
which she cannot — to rebut her prima facie showing, Beetz need only produce a “legitimate
nondiscriminatory reason” for its alleged actions. Id. Beetz’s burden is simply one of articulation
— it is not required to prove the absence of a discriminatory motive in its decisions regarding
Plaintiff. DiCola v. SwissRe Holding (N. Am.), Inc., 996 F.2d 30, 32 (2d Cir. 1993). This is not a
heavy burden. The employer’s proffered reasons will suffice if they are “nondiscriminatory on
their face” and “honestly believed” by the employer even if they are “foolish or trivial or
baseless.” Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1997). Once
Beetz proffers a legitimate, non-discriminatory reason for any employment actions, “the
presumption [of discrimination] raised by the prima facie case is rebutted and drops from the
case.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
For the final step of the analysis, the burden then shifts back to Rite. Burdine, 450 U.S. at
253. To prevail at this stage, the plaintiff must demonstrate that the employer’s legitimate
reasons were not its true reasons, but were a pretext for discrimination. Id. This Court has held
that “[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.” Hicks., 509 U.S. at 519. At all times, the ultimate
burden of persuasion remains with Rite. Id. At 518.
Rite cannot make out a prima facie case of sex discrimination because she has offered no
evidence that could raise even an inference of discrimination, let alone prove that Beetz’s
legitimate reason is pretextual. Plaintiff has failed to offer any evidence, beyond her conclusory
beliefs, that any actions about which she complains were based upon discrimination. Conclusory
14
and speculative allegations will not suffice to demonstrate discriminatory intent, rather Rite
“must point to facts that suggest” that there was a discriminatory animus at play. See e.g., Kalsi
v. N.Y.C. Transit Auth., 62 F. Supp. 2d 745, 753 (E.D.N.Y. 1998), aff’d, 189 F.3d 461 (2d Cir.
1999) (stating that plaintiff cannot simply rely on the occurrence of an adverse action, but must
point to facts that suggest the action was motivated at least in part by discrimination).
a.
Rite Cannot Establish A Prima Facie Case For
Sex Discrimination Because There Was No
Adverse Action.
An adverse employment action is defined as a “tangible change in working conditions
that produces a material employment disadvantage.” Wedow v. City of Kansans City, 442 F.3d
661, 671 (8th Cir. 2006); see also Enowmbitang v. Seagate Tech., Inc., 148 F.3d 970, 973 (8th
Cir. 1998) (requiring conduct to “materially alter[ ] the terms of conditions of the plaintiff’s
employment” to constitute an adverse employment action). Some employment actions, such as
“changes in the terms, duties, or working conditions that cause no materially significant
disadvantage to the employee . . . or disappointment with changes in one’s employment
situation,” are not adverse. Saulsberry v. St. Mary’s Univ. of Minn., 318 F.3d 862, 868 (8th Cir.
2003). Further, an employment action is considered adverse when it results in a decrease of the
employee’s salary or benefits. Smith v. County of Hamilton, 34 Fed. Appx. 450 (6th Cir. 2002)
(no demotion where plaintiff testified that her salary did not decrease and she lost no benefits);
Hopkins v. Electric Data System Corp., 196 F.3d 655 (6th Cir. 1999) (plaintiff’s job transfer was
not adverse because plaintiff received same pay and benefits as she had prior to the transfer); and
Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6th Cir. 1996) (“reassignments without
salary or work hour changes do not ordinarily constitute adverse employment decisions in an
employment discrimination claim”).
15
The appellate court below identified Rite’s lateral transfer as her alleged adverse action
stating that “Beetz’s actions in transferring Rite . . . may constitute employment discrimination
as prohibited by Title VII . . .” R. at 27. As such, Rite must establish that the transfer constituted
an adverse employment action at the prima facie stage. Rite cannot do so. Here, it is undisputed
that Rite’s lateral transfer afforded her the same salary as her prior position. R. at 8. There is also
nothing in the record to reflect that she suffered any loss of benefits either. To that end, while her
general day to day duties changed, case law is clear that this alone does not constitute enough of
a material alteration.
Rite mistakenly believe that her new position is somehow less “prestigious” than her old
one because there is a difference in duties. However, it is well-settled that Rite’s subjective
believe alone does not establish an adverse employment action. See County of Hamilton, 34 Fed.
Appx. (summary judgment in employer’s favor because plaintiff’s subjective belief she was
transferred to a worse job was insufficient to establish an adverse employment action.). There is
no reason to believe that any other employees felt that the Graphic Design Department was a less
prestigious position than any other in the company. Further, Rite did not complain to Young or
anyone else about this lateral transfer. Rite fails to establish that her lateral transfer was an
adverse action. Therefore, Rite’s prima facie case fails at the outset.
b.
Rite Cannot Establish A Prima Facie Case For
Sex Discrimination Because She Was Not
Treated Differently From A Similarly Situated
Employee.
As discussed above, to establish a prima facie case of sex discrimination under Title VII,
Rite must show, in addition to an adverse employment action that: (1) she was a member of a
protected class, (2) she was qualified to do her job, (3) she suffered an adverse employment
16
action, and (4) that she was treated differently from a similarly situated employee not in that
class. In addition to the above, Rite fails on the final prong of the prima facie case.
At all relevant times during the hiring process (i.e. application and interview), as well as
during the 2013 performance review, Rite referred to herself as Eric and presented herself as a
man. Thus, when Young was choosing between Rite and Jackson for the promotion, he was
choosing between two individuals of the same protected class. Rite’s claim that she was
discriminated against on the basis of her sex fails on the fourth prong of the prima facie
framework because Jackson was part of the same protected class as Rite. Indeed, in that instance,
there is no individual of a different class to compare Rite to. As such her prima facie case would
fail at the onset.
However, even if Rite were to argue that she was presenting as a woman when the
decision was announced and was thus treated differently from Jackson, a male, her argument
would fail. Rite is not able to prove that she was treated differently from Jackson. They were
both given the same opportunity, the same interview, and judged on the same qualifications and
performance evaluation from 2013. Thus, Rite is not able to satisfy the final prong of the prima
facie analysis.
c.
Rite Cannot Show That Beetz’s Legitimate, NonDiscriminatory Reason For Her Lateral
Transfer Was A Pretext.
Because Beetz has presented a legitimate, nondiscriminatory reason for its actions, the
inference of discrimination raised by the Respondent’s prima facie case disappears, leaving her
with the ultimate burden of persuasion that Beetz intentionally discriminated against the her and
that the legitimate reasons offered by Beetz were not its true reasons, but were a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). To
17
establish pretext, Rite bears the burden of producing “sufficient evidence from which a jury
could reasonably reject [Defendant’s] explanation for why it [transferred him].” Blizzard v.
Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012). To do this, Rite must show that: (1)
Beetz’s proffered reasons had no basis in fact; (2) the proffered reasons did not actually motivate
[the employment action]; or (3) the reasons were insufficient to motivate [the employment
action]. See Id. Plaintiff has no evidence to support his claim under any of these tests. Here,
there is no evidence to suggest that Rite’s status as a transsexual had anything to do with any of
the three aforementioned employment actions.
Further, Beetz has articulated a legitimate, nondiscriminatory reason for the decision it
made. Beetz valued Rite’s talents and given some of her struggles with her old job and team as
evidenced by her 2013 performance review, placed her in a new role. The company simply felt
that this move would be in its best interest while also balancing an effort to keep Rite with the
company. Despite her apparent unhappiness with the move, she never voiced her concerns to
anyone. Instead of offering actual evidence that Young transferred her due to her being
transsexual, Rite simply became outraged and believed that that was the case. R. at 9. She did not
even attempt to talk to Young about the move.
Rite’s subjective beliefs do not rise to the level of ‘sufficient evidence’ needed to
overcome Beetz’s legitimate nondiscriminatory reasons for its decisions. Blizzard, 698 F.3d at
285. The facts in this case give rise to no inference of discrimination. Rite’s pure conjecture as to
the reason for her lateral transfer cannot survive a motion to dismiss because she fails to prove
that Beetz’s legitimate, nondiscriminatory reason for not promoting her was a pretext.
18
3.
Rite’s Claim For Punitive Damages Fails As A Matter
Of Law Because She Cannot Show Any Evidence Of
Malice, Oppression, Or Fraud.
This Court has previously stated that punitive damages are available under Title VII but
are limited to “cases in which the employer has engaged in intentional discrimination and has
done so ‘with malice or with reckless indifference to the federal protected rights of an aggrieved
individual.’” Kolstad v. American Dental Ass’n, 527 U.S. 526, 529-30 (1999). To that end, to
support a judgment of punitive damages, the complaint . . . must allege ultimate facts of the
defendant’s oppression, fraud, or malice. See Altman v. PNC Mortg., 850 F. Supp. 2d 1057,
1085-86 (E.D. Cal. 2012) (quoting Smith v. Superior Court, 10 Cal. App. 4th, 1033, 1042
(1992)). To recover punitive damages a plaintiff must do more than show intentional
discrimination, “a plaintiff must demonstrate that the defendant almost certainly knew that what
he was doing was wrongful and subject to punishment.” Ngo v. Reno Hilton Resort Corp., 140
F.3d 1299, as amended, 156 F.3d 988 (9th Cir. 1998); Honda Motor Co. v. Oberg, 114 S. Ct.
2331, 2341 (1994), (in which the U.S. Supreme Court noted that the “clear and convincing”
standard “is an important check against unwarranted imposition of punitive damages.”).
The facts alleged by Rite fall extremely short of the “clear and convincing evidence” of
intentional, egregious conduct that would establish malice, oppression or fraud by Beetz. To the
contrary, there is no evidence that any employee, let alone the managing agent Mr. Young,
discriminated or acted out against Rite. The evidence reflects zero remarks made, zero physical
abuse, and in fact was put in a prestigious position with an identical salary. In fact, the record
only indicates that some members of the Sales Department “started talking about Rite’s
transition.” R. at 7. To be clear, this does not include Young or anyone else in management who
would be considered a managing agent. The talking amongst the members of the Sales
Department resulted in, as it would most other topics from politics to sports to fashion, some
19
supporting her decision and others not. Id. This falls far short of the egregious conduct required
for an award of punitive damages.
Even in the unlikely event that Respondent was to prove discrimination, that by itself
would not support her claim for punitive damages. An employee is not entitled to recover
punitive damages simply because she established that her employer discriminated against her.
Ackerman v. Western Electric Co., 643 F.Supp. 836, 857 (N.D. Cal. 1986), aff’d, 860 F.2d 1514
(9th Cir. 1988). There, the employer’s actions were “unfounded, misguided and extremely illadvised,” but the Court held that this was insufficient for punitive damages. Id at 1521.
Rite has offered no evidence of malice, fraud or oppression by a managing agent or any
employee of Beetz, much less the clear and convincing evidence required to be awarded punitive
damages. To the contrary, even after announcing that she would undergo transition surgery,
Young made a good faith effort to avoid discrimination by continuing to employ Rite. R. at 8.
Because he made a good faith effort to do so, Beetz accomplished the objective of Title VII and
is thus shielded from liability for punitive damages. Kolstad v. ADA, 527 U.S. 526, 545 (1999)
(holding that an employer is not liable for punitive damages where they have made good-faith
efforts to comply with Title VII).
B.
Rite Was Not Entitled To Job-Protected, Unpaid Leave Under
The FMLA Because She Was Not Afflicted With A “Serious
Health Condition.”
1.
Gender Dysphoria Is Not A “Serious Health Condition”
Under The FMLA.
The Family Medical Leave Act of 1993 (“FMLA”) allows an eligible employee to take
job-protected, unpaid leave for up to twelve weeks in any twelve months, if the employee's
"serious health condition" prevents the employee from performing the functions of his or her job.
29 U.S.C. § 2612(a)(D). The Act makes it unlawful for any employer to interfere with, restrain,
20
or deny an employee FMLA leave because of a “serious health condition.” 29 U.S.C.A. §§
26(a)(1)(D), 2615(a)(1).
In the absence of a qualifying "serious health condition," the employee is not eligible for
FMLA leave and thus does not engage in protected activity by taking a non-FMLA leave from
work. See Rhoads v. Federal Deposit Ins. Corp., 257 F.3d 373, 384 (4th Cir. 2001). Here,
Respondent Erika Rite did not have a serious health condition entitling her to job-protected,
unpaid leave. Although Rite contends that her gender reassignment surgery was necessary in
light of her gender dysphoria diagnosis, she cannot cite any binding authority to support her
proposition.
a.
Legislative History And Congressional Intent
Indicate That Gender Dysphoria Does Not
Qualify As A “Serious Health Condition.”
In order to determine whether gender dysphoria is covered under the FMLA’s definition
of “serious health condition,” the Court must first examine the text of the statute followed by the
legislative history and interpretations of administrative agencies to help determine Congress’
intent. See Chevron U.S.A., 467 U.S. at 844. The FMLA defines a “serious health condition” as
an illness, injury, impairment or physical or mental condition that involves inpatient care or
continuing treatment by a health care provider. 29 U.S.C. § 2611(11). The statute does not cover
gender dysphoria as a “serious health condition.”
Legislative history demonstrates that Congress did not intend for the FMLA to cover
leave for gender reassignment surgery. Attempts to change and expand the FMLA have not been
successful given employers’ interests in maintaining operations. In a Senate Report on the
FMLA, Congress included a list of potential serious health conditions such as heart attack,
cancer, stroke, appendicitis, pneumonia, heart bypass surgery, severe arthritis, spinal injuries,
21
back surgery and pregnancy. S. Rep. No. 103-3, at 28 (1993). All of these health conditions share
a common characteristic—each condition makes it difficult if not impossible for an employee to
carry out his or her job functions. These enumerated conditions are debilitating and often
develop without notice, making it difficult to schedule treatment around work. In conformance
with Congress’ intent, courts have inferred that the purpose behind FMLA was “to help working
men and women balance the conflicting demands of work and personal life… by recognizing
that there will be times in a person’s life when that person is incapable of performing his or her
duties for medical reasons.” Hodgens v. General Dynamics Corp., 144 F. 3d 151, 159 (1st Cir.
1998).
Gender dysphoria, on the other hand, has not been recognized as a condition necessitating
urgent treatment in the same manner as a heart attack or spinal injury. Recent studies suggest that
gender dysphoria is biological and caused by the development of gender identity before birth.
Elizabeth Glaeser, Aspects of Gender Identity Development: Searching for an Explanation in the
Brain, NYU, http://steinhardt.nyu.edu/appsych/opus/issues/2011/spring/gender_identity_development
(last visited Feb. 13, 2016). Researchers claim that “fixing” the problem by uprooting natural
anatomy does not necessarily “cure” gender dysphoria. Id. Instead, treatment should be
administered on a case-by-case basis. Id. In light of this research, it is clear that gender dysphoria
is different from other conditions which often qualify for FMLA, like appendicitis or spinal
injuries.
Here, Rite did not have any symptoms which would have made FMLA leave appropriate
for gender reassignment surgery. Rite went through her entire life coping with her condition
without needing urgent medical treatment and without allowing it to interfere with her work. R.
22
at 4-5. Rite’s high sales numbers and promotion to Lead Sales Consultant at Beetz also
demonstrate that her condition never inhibited her from performing her job functions. Id.
b.
The Department Of Labor Has Never Indicated
That Gender Dysphoria Qualifies As A “Serious
Health Condition” Warranting FMLA Leave.
The Secretary of Labor may issue regulations under Congress’ directive that are
“necessary to carry out” the FMLA. 29 U.S.C.A. § 2653. The Secretary of Labor has never stated
that gender dysphoria constitutes a “serious health condition.” Although the Secretary has listed
a few ailments, such as the common cold or flu, that do not qualify a “serious health condition,”
the secretary was careful to note the intent of the statute was not to elucidate a per se list of rule
exclusions, but rather to provide guidance as to what qualifies as a serious health condition.
PETER SUSSER & DAVID B. BERRY, FAMILY AND MEDICAL LEAVE HANDBOOK (2009).
2.
Even If Gender Dysphoria Was A “Serious Health
Condition,” Rite’s Gender Reassignment Surgery Did
Not Justify Medical Leave Under FMLA.
The authority cited by the Thirteenth Circuit Court of Appeals was wholly inadequate to
support its finding that Rite’s gender dysphoria constitutes a “serious health condition.” The
Thirteenth Circuit’s opinion relied heavily on court decisions discussing gender dysphoria in the
prison context and a letter issued by the U.S. Office of Personnel Management (“OPM letter”).
Rite v. Beetz, Inc., 575 F. 3d 185 (13th Cir. 2015). However, neither of these authorities support
the lower court’s finding because Rite’s situation is not analogous to that of prison inmates and
the OPM letter has no legal effect on the minimum requirements of the FMLA. Furthermore,
Rite waived any rights she may have had under the FMLA by failing to follow necessary
procedures.
23
a.
Rite’s Gender Dysphoria Did Not Rise To The
Level Of Being A Serious Health Condition.
Under the FMLA, an employee may be entitled to work-protected, unpaid leave for a
“serious health condition that makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C. § 2612(a)(1). Courts are less likely to find a “serious
health condition” when the employee’s illness is not so severe. In Barker v. Rooms to Go
Furniture Corp., the court held an employee did not suffer from a “serious health condition”
because his anxiety never made him unable to perform the functions of his position. Barker v.
Rooms to Go Furniture Corp., 375 Fed. Appx. 966, 968 (11th Cir. 2010). Although the employee
had to take a few short breaks from his work, the court held he did not introduce sufficient
evidence demonstrating he suffered from a serious health condition. Id.
Similar to Barker, Rite was always able to perform the functions of her job. The record
indicates Rite not only met minimum expectations at Beetz, she excelled at her job. R. at 4.
Beetz even rewarded her excellent work with a promotion to Lead Sales Consultant. Id. Rite
developed solid relationships with investors, never allowing her “illness” to interfere with her
job. Id. Thus, Rite was not entitled to job-protected, unpaid leave because her symptoms never
kept her from performing her job and she did not have a qualifying “serious health condition.”
On the other hand, courts have been more likely to find a “serious health condition” when
the employee’s symptoms prevented him or her from performing her job. See Chandler v.
Specialty Tires of Am. (Tennessee) Inc., 283 F. 3d 818 (6th Cir. 2002) (employee hospitalized for
severe depression and suicide attempt); Vasconello v. Cybex Intern, 962 F. Supp. 701 (D. Md.
1997) (employee unable to perform the functions of her job after multiple incidents of sexual
harassment by supervisors). By contrast, Rite was never unable to perform the functions of her
job and was never hospitalized for her gender dysphoria.
24
b.
Even If Gender Dysphoria Is Considered A
“Serious Health Condition,” Rite’s Gender
Reassignment Surgery Was Still Not Medically
Necessary.
In Kosilek v. Spencer, the First Circuit held that a prison inmate was not entitled to
gender reassignment surgery as medically necessary treatment. Kosilek v. Spencer, 774 F.3d 63,
96 (1st Cir.). Thus, the prison was not required to provide the surgery. Here, the Thirteenth
Circuit ignored the First Circuit’s holding in Kosilek and adopted the District Court’s analysis
which had been overruled. Beetz, Inc., 575 F. 3d at 194. The District Court in Kosilek
characterized gender reassignment surgery as the only adequate treatment for the inmates serious
medical need.
The District Court’s holding in Kosilek carries no weight here. Not only was the decision
overruled, Rite’s situation is not analogous to that of a prison inmate requesting gender
reassignment surgery. Unlike a prison inmate, Rite still had the freedom and ability to obtain
gender reassignment surgery without FMLA leave, whereas an inmate is not at liberty to obtain
surgery. Rite seems to ignore the fact that Beetz offered employees the option to take “Other
Unpaid Leave.” R. at 35. In addition, the facts in Kosilek markedly contrast the facts of the case
at bar. The inmate in Kosilek was diagnosed with severe gender identity disorder, tried to commit
suicide on multiple occasions, and showed minimal progress after taking hormones. Her doctors
also believed she would attempt “suicide again if she was not able to change her anatomy.”
Kosilek, 774 F.3d at 71. Unlike Kosilek, Rite was never so severely distressed. Rather, Rite
demonstrated substantial improvement after undergoing psychotherapy sessions with Dr. Warren
Gee. R. at 5.
The Thirteenth Circuit mistakenly relied on Norsworthy v. Beard for the proposition that
gender reassignment surgery is medically necessary. In Norsworthy, the District Court granted a
25
preliminary injunction compelling an inmate to be provided with gender reassignment surgery.
Norsworthy v. Beard, 74 F. Supp. 3d 1100 (N.D. Ca. 2014). However, the court subsequently
dismissed and remanded the case, rendering the case moot. Norsworthy v. Beard, 87 F. Supp. 3d
1104 (N.D. Ca. 2015). Thus the Ninth Circuit never had the opportunity to rule on the issue of
whether or not gender reassignment was medically necessary. However, even if the Ninth Circuit
had found that gender reassignment surgery was medically necessary, the decision would not
control here. Unlike Rite, the inmate in Norsworthy exhibited symptoms of severe anxiety and
distress.
c.
A Letter Written By The U.S. Office Of
Personnel Has No Legal Effect On The FMLA
Requirements For Private Employers.
An OPM letter, issued on June 13, 2014, lifted the ban on all coverage related to gender
transition under the Federal Employee Health Benefits Program (“FEHBP”). Letter from John
O’Brien, Covered Benefits for Gender Transition Serv. (U.S. Office of Pers. Mgmt.) (Jun. 13,
2015). The court below stated that OPM letter supported “a shift in the FMLA context towards
recognizing gender dysphoria as a ‘serious health condition.’” Beetz, Inc., 575 F. 3d at 192.
However this letter does not set the minimum standards for private employers and it does
not address the necessity of gender reassignment surgery. The OPM enforces the FMLA for
federal employers participating the FEHBP, not private employers like Beetz. Furthermore,
Beetz is only required to follow the law, not “trends.” Thus the Court should not rely on this
letter as an authority for Rite’s position.
26
d.
Rite Waived Any Rights She May Have Had
Under FMLA By Failing To Fulfill Notification
And Procedural Obligations Under FMLA And
Beetz’ Employee Leave Agreement.
In order to qualify for FMLA protected leave, an employee must tell her employer
enough information when needing time off that the employer would understand that the
employee may have a “serious health condition” entitling her to FMLA leave. 29 C.F.R. §
825.302(c). The employee must also consult with her employer to schedule absences for
foreseeable, planned, medical treatment when the absences would least disrupt the employer’s
operations. 29 U.S.C. § 2612(e)(2)(A); 29 C.F.R. § 825.303(f). The core requirements for
triggering an employer’s obligations under the FMLA are a “serious health condition and
adequate communication sufficient to put an employer on notice that the protections of the Act
may apply.” Rodriguez v. Smithfield Packing C. In Company., 545 F. Supp. 2d 508, 516 (D. Md.
2008).
Here, Rite failed to meet her obligations under the FMLA and Beetz’ Leave Policy. None
of the information Rite provided to Beetz was sufficient, as a matter of law, to put the onus on
Beetz to inquire further as to whether Rite’s gender reassignment surgery could be protected by
the FMLA. During her interview for the Executive Distributor position, Rite only “shared her
intent to transition.” R. at 7. Furthermore, Rite failed to consult with Ms. Woods as to whether
her scheduled surgery would disrupt Beetz’s operations. Rite only asked for leave, without ever
insinuating that her request was because of her “gender dysphoria” or any psychological
struggles. R. at 8. Thus, Rite’s request for leave was insufficient to put an employer on notice
that FMLA leave may be needed.
If an employee fails to meet these obligations under the FMLA, she waives the
protections of the FMLA, even if his absences would have been otherwise protected. See, e.g.,
27
Gay v. Gilman Paper Co., 125 F.3d 1432 (11th Cir. 1997); see also 29 C.F.R. § 825.312. Beetz
Leave Policy mirrored the FMLA, requiring that an employee “provide sufficient information for
Beetz to determine whether the leave may be FMLA-qualifying, and the anticipated timing and
duration of requested leave.” R. at 35. Since Rite failed to provide sufficient information to
trigger Beetz’s obligation to give FMLA leave, Rite was not entitled to job-protected unpaid
leave, even if she was entitled to it. Thus, as a matter of law, Rite waived her FMLA rights,
regardless of whether she had a serious health condition.
e.
Rite Waived Any Claim She May Have Had
Against Beetz For FMLA Interference By Being
Absent Longer Than The Amount Of Time
Recommended By Her Doctor.
In Twigg v. Hawker Beechcraft Corp., the Tenth Circuit held an employee’s FMLA
interference claim failed because the employee was absent past the date approved for leave and
she failed to give proper notification of her absences. Twigg v. Hawker Beechcraft Corp., 659 F.
3d 987, 1009 (10th Cir. 2011). In Rite’s case, Dr. Dreigh advised her that she would be able to
return to her daily activities one to two weeks after her surgery on January 30, 2015. R. at 9.
Notably, however, Rite did not plan to return to work until March 6, 2015, five weeks after her
surgery. Id. Thus, even if Rite’s gender reassignment surgery was necessary under the FMLA,
her FMLA interference claim still fails because her extended absence was neither doctorrecommended, nor FMLA-approved.
3.
Rite Was Not Entitled To Job-Protected, Unpaid Leave
Because Her Breast Augmentation And Facial Surgeries
Were Purely Elective And Cannot Be Covered By The
FMLA.
Treatments for cosmetic procedures are not considered serious health conditions. 29
C.F.R. § 825.113(d). For instance, a surgery commonly referred to as a “tummy tuck,” does not
28
constitute a serious health condition. Bellanger v. H & E Healthcare, L.L.C., No. CIV.A. 100667-BAJ, 2012 WL 4325633, at *2 (M.D. La. Sept. 20, 2012). Since a “tummy tuck” is a
purely cosmetic procedure, it is not covered for FMLA leave unless the surgery causes
complications that then rise to the level of a serious health condition. Here, Rite’s breast
augmentation and facial surgeries were purely cosmetic and elective, and she experienced no
complications. Thus, even if the Court determines Rite’s gender reassignment surgery was
medically necessary, Rite still would not be entitled to FMLA leave because her breast
augmentation and facial surgeries were not necessary.
4.
A Decision In Beetz’s Favor Would Serve The Ultimate
Purpose Of The FMLA And Protect Covered
Employers’ Legitimate Interests.
It took Congress eight years to negotiate, rewrite and rework the proposed legislation that
eventually became the Family and Medical Leave Act. The legislative history makes it clear that
the final version of the FMLA was meant to be a hard-fought compromise of two legitimate
interests—those of employees needing time off work and those of employers needing to maintain
business operations. Indeed, the need for balance was so integral to the passage of the FMLA
that it was included in the Act:
It is the purpose of this Act . . . to accomplish the purposes described in
paragraphs (1) and (2) [for employees to take leave to meet certain family needs]
in a manner that accommodates the legitimate interests of employers . . . .
29. U.S.C. 2601(b) (2002).
Congress gives employers the autonomy to craft leave policies that can meet the needs of
their employees without disrupting business. Many employers are modifying their leave policies
to address transition related services to the extent a doctor states he or she is treating a serious
health condition. Workplace Gender Transition Guidelines, HUMAN RIGHTS CAMPAIGN,
29
http://www.hrc.org/resources/workplace-gender-transition-guidelines (last visited Feb. 13, 2016).
The FMLA thus gives companies the ability to tailor coverage according to the needs of the
specific transgender employee. An individualized approach, as opposed to a blanket rule, best
serves the interests of all parties involved because what might be a critical service for one
transgender person may not be necessary for another.
Beetz, like any other American business, cannot operate based on “trends” when
attempting to comply with the law. Should Congress or states prefer to prospectively alter the
bases for taking job-protected leave, Beetz would then comply. However, given the facts of this
case, Beetz complied with its legal obligations under the FMLA, which is a floor, not a ceiling,
for medical and family leave benefits.
V.
CONCLUSION
For each of the foregoing reasons, Petitioner respectfully requests that the Court reverse
the court of appeal’s judgment regarding both the Title VII and FMLA issues and reinstate the
district court’s order granting Beetz’s motion to dismiss.
DATED: February 16, 2016
Respectfully submitted,
______________________________
Attorneys for Petitioner
BEETZ, INC.
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