Summary
In Oiler, for example, the plaintiff was terminated because he was a man with a sexual or gender identity disorder who publicly disguised himself as a woman, and was held outside a protected class under Title VII.
Summary of this case from Sweet v. Mulberry Lutheran Home, (S.D.Ind. 2003)Opinion
Civil Action No. 00-3114, Section: "I"
September 16, 2002
ORDER AND REASONS
Plaintiff, Peter Oiler ("Oiler"), filed this employment discrimination action to recover damages from his former employer, Winn-Dixie Louisiana, Inc. ("Winn-Dixie"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a)(1), and the Louisiana antidiscrimination statute, La. R.S. 23:332(A)(1) (West 2002). plaintiff has filed a motion for summary judgment with respect to liability issues. Defendant has filed a cross motion for summary judgment. Both motions are opposed and both parties have filed reply memoranda.
In footnote one of plaintiff's memorandum in support of his motion for summary judgment, plaintiff states: "For the sake of convenience, because the Louisiana state law counterpart to Title VII is `similar in scope' to Title VII, Mr. Oiler discussed only Title VII in this memorandum. See Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989) (quotation omitted). That said, because Title VII does not necessarily limit the scope of Louisiana state law, Louisiana state law may afford greater protection than Title VII."
In an April 15, 2002, status conference, held after the cross motions for summary judgment were filed, plaintiff's counsel agreed that the remedy afforded by the Louisiana employment discrimination statute is coextensive with the remedy provided by Title VII, the federal employment discrimination statute. Rec. Doc. No. 55. plaintiff's counsel also agreed that plaintiff would waive any argument that state law provided broader protection or greater remedies than Title VII. Rec. Doc. No. 55.
Rec. Doc. No. 37.
Rec. Doc. No. 42.
Rec. Doc. No. 40 (Defendant's memorandum in opposition to plaintiff's motion for summary judgment), Rec. Doc. No. 51 (Plaintiff's consolidated memorandum in opposition to defendant's motion for summary judgment and in reply to defendant's opposition to plaintiff's motion for summary judgment), and Rec. Doc. No. 54 (Defendant's reply memorandum to plaintiff's opposition).
At issue is whether discharging an employee because he is transgendered and a crossdresser is discrimination on the basis of "sex" in violation of Title VII. For the following reasons, the motion of defendant for summary judgment is GRANTED and the motion of plaintiff for summary judgment is DENIED.
Facts
In 1979, plaintiff, Peter Oiler, was hired by defendant, Winn-Dixie, as a loader. In 1981, he was promoted to yard truck driver and he later became a road truck driver. As a road truck driver, plaintiff delivered groceries from Winn-Dixie's grocery warehouse in Harahan, Louisiana, to grocery stores in southern and central Louisiana and Mississippi.Plaintiff is a heterosexual man who has been married since 1977. The plaintiff is transgendered. He is not a transsexual and he does not intend to become a woman. Plaintiff has been diagnosed as having transvestic fetishism with gender dysphoria and a gender identity disorder. He is a male crossdresser. The term crossdresser is used interchangeably with transvestite.
Rec. Doc. No. 37, Oiler Dec., paras. 2 and 4.
Rec. Doc. No. 37, Oiler Dec., para. 3. Plaintiff defines transgendered as meaning that his gender identity, i.e., his sense of whether he is a male or female, is not consistently male. Id.
Walter Bockting, Ph.D., a psychologist who describes himself as an expert on transgender issues, defines the term "transgendered" as:
[A]n umbrella term used to refer to a diverse group of individuals who cross or transcend culturally-defined categories of gender. They include crossdressers or transvestites (who desire to wear clothing associated with another sex), male-to-female and female-to-male transsexuals (who pursue or have undergone hormone therapy or sex reassignment surgery), transgenderists (who live in the gender role associated with another sex without desiring sex reassignment surgery), bigender persons (who identify as both man and woman), drag queens and kings (usually gay men and lesbian women who do `drag' and dress up in, respectively, women's and men's clothes), and female and male impersonators (males who impersonate women and females who impersonate men, usually for entertainment).
Rec. Doc. No. 37, Bockting Dec., attached report, p. 7.
Rec. Doc. No. 37, Oiler Dec., para. 3.
Dr. Bockting reports that:
Mr. Oiler's transgender identity can best be described as a male heterosexual crossdresser. While Mr. Oiler does report a history of some gender dysphoria (discomfort with the male sex assigned at birth), he is not transsexual; he does not want to take feminizing hormones or undergo sex reassignment surgery. . . . His motivation to crossdress appears two-fold: (1) to express a feminine side and (2) to relieve stress. In addition, he sometimes experiences sexual excitement in response to crossdressing. Associated distress includes emotional turmoil, agitation, and marital conflict. Therefore, a DSM-IV diagnosis of Transvestic Fetishism with gender dysphoria is warranted.
Rec. Doc. No. 37, Bockting Dec., attached report, p. 6.
Dennis P. Sugrue, Ph.D., is also a psychologist who describes himself as an expert on transgendered issues. Dr. Sugrue does not agree with Dr. Bockting's diagnosis of transvestic fetishism, but he instead opines that plaintiff is transgendered with a gender identity disorder. He states in his report:
Mr. Oiler's cross-dressing behavior suggests that he is transgendered, a non-clinical term frequently used in recent years for individuals whose behavior falls outside commonly accepted norms for the person's biological gender. In clinical terms, Gender Identity Disorder NOS (Not Otherwise Specified) is the most appropriate diagnosis.
The (DSM-IV) provides three diagnostic options for individuals with gender disturbances: Transvestic Fetishism, Gender Identity Disorder, and Gender Identity Disorder NOS. Although cross-dressing can at times have an erotic quality for Mr. Oiler, his behavior does not meet the DSM-IV transvestic fetishism criteria. . . .
Mr. Oiler displays evidence suggestive of a gender identity disorder as defined by DSM-IV. For example, he frequently wishes to pass as the other sex, desires to be treated as the other sex, and is convinced that he has the typical feelings and reactions of the other sex. He does not, however, display a preoccupation with ridding himself of primary and secondary sex characteristics or the conviction that he was born the wrong sex — features necessary for the diagnosis of a Gender Identity Disorder (often referred to as transsexualism). Hence the diagnosis of Gender Identity Disorder NOS.
Rec. Doc. No. 37, Segrue Dec., attached report, p. 6.
Rec. Doc. No. 37, Oiler Dec., para. 3.
Rec. Doc. No. 37, Bockting Dec., attached report, pp. 7 and 9.
When he is not at work, plaintiff appears in public approximately one to three times per month wearing female clothing and accessories. In order to resemble a woman, plaintiff wears wigs and makeup, including concealer, eye shadow, foundation, and lipstick. plaintiff also wears skirts, women's blouses, women's flat shoes, and nail polish. He shaves his face, arms, hands, and legs. He wears women's underwear and bras and he uses silicone prostheses to enlarge his breasts. When he is crossdressed as a woman, he adopts a female persona and he uses the name "Donna".
Rec. Doc. No. 37, Bockting Dec., attached report, p. 3.
Rec. Doc. No. 37, Oiler Dec., para. 3.
Rec. Doc. No. 40, Exh. A, Deposition of Peter Oiler ("Oiler Dep."), p. 94.
Rec. Doc. No. 40, Exh. A, Oiler Dep., pp. 94-95.
Rec. Doc. No. 40, Exh. A, Oiler Dep., pp. 94-95.
Rec. Doc. No. 40, Exh. A, Oiler Dep., p. 95.
Rec. Doc. No. 40, Exh. A, Oiler Dep., p. 96.
Prior to 1996, plaintiff only crossdressed at home. After 1996, assuming the identity of "Donna", plaintiff crossdressed as a woman in public. While crossdressed, he attended support group meetings, dined at a variety of restaurants in Kenner and Metairie, visited night clubs, went to shopping malls, and occasionally attended church services. He was often accompanied by his wife and other friends, some of whom were also crossdressed.
Rec. Doc. No. 40, Exh. A, Oiler Dep., p. 92.
Rec. Doc. No. 40, Exh. A, Oiler Dep., pp. 92-93, 115.
Rec. Doc. No. 40, Exh. A, Oiler Dep., pp. 93-94.
On October 29, 1999, plaintiff told Gregg Miles, a Winn-Dixie supervisor, that he was transgendered. He explained that he was not a transsexual and that he did not intend to become a woman. However, he told Miles that for a number of years he had been appearing in public at restaurants and clubs while crossdressed. He told Miles that while he was crossdressed, he assumed the female role of "Donna". He asked whether he would be terminated if Michael Istre, the president of Winn Dixie Louisiana, Inc., ever saw plaintiff crossdressed as a woman.
Rec. Doc. No. 37, Oiler Dec., para. 9.
Rec. Doc. No. 37, Oiler Dec., para. 9.
Rec. Doc. No. 40, Exh. C, Deposition I of Greg Miles ("Miles Dep. I"), pp. 110-111, 237.
Rec. Doc. No. 40, Exh. C, Miles Dep. I, pp. 237-238.
Rec. Doc. No. 40, Exh. C, Miles Dep. I, p. 111.
On the same day, Miles had a private meeting with Istre. Miles told Istre that plaintiff was transgendered. Miles explained that for several years the plaintiff had been appearing in public crossdressed as a woman. Istre contacted Winn-Dixie's counsel for legal advice.
Rec. Doc. No. 42, Exh. A, Deposition of Michael Istre ("Istre Dep."), p. 67; Exh. I, Declaration of Michael Istre ("Istre Dec."), para. 2.
Rec. Doc. No. 42, Exh. A, Istre Dep., pp. 69-70.
Rec. Doc. No. 42, Exh. A, Istre Dep., p. 71; Exh. B, Miles Dep., p. 112.
Istre and Miles made the decision to terminate the plaintiff's employment with Winn-Dixie. On November 1, 1999, Istre and Miles asked Oiler to resign. Several times after he was initially asked to resign, plaintiff met with Winn-Dixie managers who gave him a deadline by which he would have to resign. The deadline was extended a number of times. On January 5, 2000, when plaintiff did not resign voluntarily, Winn-Dixie discharged him. The reason plaintiff was terminated was because he publicly adopted a female persona and publicly crossdressed as a woman. Specifically, Istre and Miles, acting for Winn-Dixie, terminated Oiler because of his lifestyle, i.e., plaintiff publicly crossdressed for several years by going to restaurants and clubs where he presented himself as "Donna", a woman. Istre and Miles believed that if plaintiff were recognized by Winn-Dixie customers as a crossdresser, the customers, particularly those in Jefferson Parish where plaintiff worked, would disapprove of the plaintiff's lifestyle. Istre and Miles thought that if Winn-Dixie's customers learned of plaintiff's lifestyle, i.e., that he regularly crossdressed and impersonated a woman in public, they would shop elsewhere and Winn-Dixie would lose business. Plaintiff did not crossdress at work and he was not terminated because he violated any Winn-Dixie on-duty dress code. He was never told by any Winn-Dixie manager that he was being terminated for appearing or acting effeminate at work, i.e., for having effeminate mannerisms or a high voice. Nor did any Winn-Dixie manager ever tell plaintiff that he did not fit a male stereotype or assign him work that stereotypically would be performed by a female.
Rec. Doc. No. 42, Exh. I, Istre Dec., para. 3.
Rec. Doc. No. 37, Oiler Dec., para. 10; Rec. Doc. No. 43, Exh. C, Miles Dep., pp. 236-238; Rec. Doc. No. 42, Exh. A, Istre Dep., pp. 91-100.
Rec. Doc. No. 37, Oiler Dec., para. 11.
Rec. Doc. No. 37, Oiler Dec., para. 11.
Rec. Doc. No. 37, Oiler Dec., para. 13.
Rec. Doc. No. 42, Exh. B, Miles Dep. I, pp. 236-238. Miles explained that by "lifestyle" he meant that the plaintiff "told me that he had been doing this for several years. He knew he was different from childhood. He . . . described what he did away from work. It wasn't that he did it at home. He went out into the public. He went out into the night life. He went out to dinner in a female persona and that was something he chose to do." Miles Dep. I, p. 237. In his deposition, Miles testified:
Q: And so it was his off-the-job behavior over this period of time that you've referenced, is that what caused you to terminate him?
A: You say behavior; I say life-style.
Q: What do you mean by "life-style"?
A: Mr. Oiler told me that he had been doing this for several years. . . . It wasn't that he did it at home. He went out into the public. He went out into the night life. He went to dinner in a female persona and that was something he chose to do.
* * * *
Q: So, what made it problematic for you such that you terminated him was the fact that he was taking this life-style out of his home into the public; is that correct?
A: Yes, sir.
Q: And, specifically, he was dressing in a certain way in full view of the public, going out to restaurants and clubs and things like that. Is that what made this something that you wanted to terminate him for?
A: There's more to it than just that statement.
Q: So what more? Just clarify for me.
A: He had adopted a female persona. He called himself Donna when he went out. It wasn't just one or two things. It was the entire picture that he told.
Miles Dep. I, p. 236-238.
Istre was concerned that plaintiff was "going out in public impersonating a woman, wearing the wig and the makeup and the jewelry and the dress and the shoes and the underwear and calling himself by name repeatedly." According to Istre, that "could have some effect on my business." Rec. Doc. No. 42, Exh. A, Istre Dep., pp. 91-92.
Istre explained that, "I think with him doing all of these things, and when he is at work driving one of my trucks with a 45 or 50 foot trailer, whatever he is driving with Winn-Dixie, and walking through my stores and people recognizing him coming up to the front of the store or driving up in the front of our stores, with the truck parked in the front of the parking lot or in the front of the building, walking in, going to the office and going through the back of the store, I think if my customers recognized him . . . I'd lose business." Istre Dep., pp. 95-96.
Istre also considered the fact that plaintiff regularly worked in Jefferson Parish, stating that, "Well, Peter said . . . [cross-dressing] was unacceptable in Jefferson parish, and when I looked at Jefferson Parish and the amount of stores that I have in Jefferson Parish, which is approximately 18 or so stores and I've got a large customer base there that have various beliefs, be it religion or a morality or family values or people that just don't want to associate with that type of behavior, those are the things that I took into consideration." Istre Dep., p. 99.
Rec. Doc. No. 42, Exh. A, Istre Dep., pp. 91-100; Rec. Doc. No. 42, Exh. B, Miles Dep., pp. 125-127.
Rec. Doc. No. 37, Exh. A, Istre Dep., p. 118.
Rec. Doc. No. 40, Exh. A, Oiler Dep., p. 214. Prior to October 29, 1999, plaintiff had complained to Miles that there were rumors in his workplace that he was gay and he asked Miles to discourage the rumors. Rec. Doc. No. 37, Oiler Dec., para. 8. On October 29, 1999, Miles asked Oiler if the rumors had stopped and Oiler stated that they had. Rec. Doc. No. 37, Oiler Dec., para. 9.
Plaintiff is not making a Title VII claim for sexual harassment based upon rumors in his workplace that he was gay or that co-employees referred to him using demeaning terms, such as "sissy", or any other inappropriate term used by some to refer to a male who does not fit a masculine sexual stereotype. There is no evidence in the summary judgment record that any such name-calling occurred or that the plaintiff was harassed because of his gender identity disorder. Rec. Doc. No. 40, Exh. A, Oiler Dep., p. 214. Until plaintiff voluntarily told his supervisor at Winn-Dixie that he was transgendered, there is no indication in the record that any person employed at Winn-Dixie knew that plaintiff was transgendered.
Rec. Doc. No. 40, Exh. A, Oiler Dep., p. 214.
Plaintiff received a "Dismissal and Notice of Rights" issued by the United States Equal Employment Opportunity Commission. plaintiff subsequently filed this lawsuit.
Rec. Doc. No. 42, Exh. C, Oiler Dep., Dep. Exh. 11. The EEOC Notice of Suit Rights states that, "[t]he EEOC is closing its file on this charge for the following reason: The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC."
Rec. Doc. No. 1.
Summary Judgment Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). To defeat a properly supported motion for summary judgment, the party opposing summary judgment must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2552, quoting F.R.Civ.P. 56(e); Auguster v. Vermilion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001).Issues Presented
Plaintiff alleges two grounds in support of his motion for summary judgment. First, plaintiff argues that Title VII prohibits employment discrimination on the basis of sexual stereotyping and that defendant's termination of him for his off-duty acts of crossdressing and impersonating a woman is a form of forbidden sexual stereotyping. Second, plaintiff contends that he is a victim of disparate treatment in violation of Title VII. He alleges that he was terminated because he crossdressed while off-duty, although other similarly situated female employees were not discharged.
Plaintiff does not claim that because of his gender identity disorder, he has a disability under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., or that his discharge is a violation of ADA. congress specifically excluded gender identity disorders from coverage under the ADA. See, 42 U.S.C. § 12211 (b), which states in relevant part: "Under this chapter, the term disability shall not include — (1) transvestism, transsexualism, . . . gender identity disorders not resulting from physical impairments, or other sexual behavior disorders."
Plaintiff alleges that the defendant "does not fire female employees who regularly wear masculine clothing and accessories in public off the job." Rec. Doc. No. 37, p. 15.
Defendant denies that plaintiff was fired for failing to conform to a male stereotype. It asserts that plaintiff's activities as a male who publicly pretended to be a female do not fall within Title VII's protection. As to plaintiff's disparate treatment claim, defendant contends that the there is no evidence in the record that any female employee of Winn-Dixie ever crossdressed and impersonated a male.
Rec. Doc. No. 42, p. 15.
Title VII
Title VII, 42 U.S.C. § 2000e-2 (a) provides in part that "[i]t shall be an unlawful employment practice for an employer (1) to . . . discharge any individual . . . because of such individual's . . . sex." The threshold determination with respect to plaintiff's first claim is whether a transgendered individual who is discharged because he publicly crossdresses and impersonates a person of the opposite sex has an actionable claim under Title VII.In Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985), a male airline pilot was fired when, following sex reassignment surgery, she attempted to return to work as a woman. The court considered whether the word "sex" in Title VII meant not only biological sex, i.e., male or female, but also "sexual preference" and "sexual identity." The Seventh Circuit concluded, based upon the plain meaning of the word "sex" and the legislative history of Title VII, that sex meant "biological sex". The court recognized that it is a "maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning." 742 F.2d at 1085. The Ulane court stated that:
The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be a female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual's sex is not synonymous with a prohibition based on an individual's sexual identity disorder or discontent with the sex into which they were born. The dearth of legislative history on section 2000e-2(a)(1) strongly reinforces the view that the section means nothing more than the plain language implies.Id.
Following Ulane, several courts have held that persons with gender identity disorders, including those discharged because they were transsexuals, did not have claims cognizable under Title VII. Like the Ulane court, these courts have held that discrimination on the basis of sex means discrimination on the basis of the plaintiff's biological sex.
Holloway v. Arthur Anderson Co., 566 F.2d 659, 662 (9th Cir. 1977) (Transsexual's Title VII claim rejected on the basis that congressional intent was that the word "sex" in the statute was to be given its plain meaning as indicated by the failure of several bills to amend Title VII to prohibit discrimination on the basis of "sexual preference"); Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982) (The court held that the discharge of plaintiff, who "misrepresented himself `herself' as an anatomical female when she applied for the job", was not actionable under Title VII. plaintiff alleged that he was a "female with the anatomical body of a male." The court stated that, "we are in agreement with the district court that for the purposes of Title VII the plain meaning must be ascribed to the term `sex' in absence of clear congressional intent to do otherwise. Furthermore, the legislative history does not show any intention to include transsexualism in Title VII."); Dobre v. National R.R. Passenger Corp., 850 F. Supp. 284, 286-287 (E.D. Pa. 1993) ("[A]n employer may not discriminate against a female because she is female. [citations omitted]. However, neither the plaintiff's memorandum of law nor the Court's independent research has disclosed any case broadening Title VII so as to prohibit an employer from discriminating against a male because he wants to become a female. Simply stated, Congress did not intend Title VII to protect transsexuals from discrimination on the basis of their transsexualism."); Powell v. Read's, Inc., 436 F. Supp. 369, 370 (E.D. Md. 1977) (Court dismissed Title VII claim of a transsexual, holding that to construe Title VII "to cover plaintiff's grievance would be impermissibly contrived and inconsistent with the plain meaning of the words. . . . The gravamen of the complaint is discrimination against a transsexual and that is precisely what is not reached by Title VII.");Voyles v. Ralph K. Davies Medical Center, 402 F. Supp. 456, 457 (N.D. Cal. 1975), aff'd, 570 F.2d 354 (9th Cir. 1978) (Table, No. 75-3808) ("It is this Court's opinion, however, that employment discrimination based on one's transsexualism is not, nor was intended by Congress to be, proscribed by Title VII of the Civil Rights Act of 1964, of which 42 U.S.C. § 2000e-2 (a)(1) is part. Section 2000e-2(a)(1) speaks of discrimination on the basis of one's `sex.' No mention is made of change of sex or of sexual preference. The legislative history of as well as the case law interpreting Title VII nowhere indicate that `sex' discrimination was meant to embrace `transsexual' discrimination, or any permutation or combination thereof."); Doe v. United States Postal Service, 1985 WL 9446 at *2 (D.D.C. 1985) (Court held that plaintiff, a male transsexual whose offer of employment was rescinded after employer learned that he was planning to undergo sex reassignment surgery and wanted to begin work as a woman, failed to state a claim under Title VII. The court agreed with Ulane, noting that a "prohibition 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); Emanuelle v. United States Tobacco Co. Inc., 1987 WL 19165 at *1 (D. Ill. 1987), aff'd, 886 F.2d 332 (7th Cir. 1989) (Table, No. 87-2785) (Court held that the Title VII claims of plaintiff, a transsexual, must be dismissed as not within the jurisdiction of Title VII); James v. Ranch Mart Hardware, Inc. 1994 WL 731517 at * 1 (D. Kan. 1994) ("Plaintiff cannot state a claim for discrimination based upon transsexualism because employment discrimination based upon transsexualism is not prohibited by Title VII", citing Voyles, 403 F. Supp. at 457. "Even if plaintiff is psychologically female, Congress did not intend to ignore anatomical classification and determine a person's sex according to the psychological makeup of that individual." Id. at *1, quoting Sommers, 667 F.2d at 748); Rentos v. Oce-Office Systems, 1996 WL 737215 at *6 (S.D.N.Y. 1996) ("Every federal court that has considered the question has rejected the application of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1982) ["Title VII"] to a transsexual claiming employment discrimination [citations omitted] . . . . Plaintiff's counsel recognizes the uniformity of the federal courts' position in his Affidavit in opposition, in which he states that he is `aware that Federal Law, under Title VII, precludes protection of transsexuals with respect to discrimination in the workplace.' [Affidavit in Opposition, para. 4]. Plaintiff's Amended Complaint therefore cannot hope to, and does not purport to, state a claim under Title VII.").
In 1964, when Title VII was adopted, there was no debate on the meaning of the phrase "sex". In the social climate of the early sixties, sexual identity and sexual orientation related issues remained shrouded in secrecy and individuals having such issues generally remained closeted. Thirty-eight years later, however, sexual identity and sexual orientation issues are no longer buried and they are discussed in the mainstream. Many individuals having such issues have opened wide the closet doors.
Ulane, 742 F.2d at 1085. As observed in Ulane, "When Congress enacted the Civil Rights Act of 1964 it was primarily concerned with race discrimination. `Sex as a basis of discrimination was added as a floor amendment one day before the House approved Title VII, without prior hearing or debate.' [citations omitted]. This sex amendment was the gambit of a congressman seeking to scuttle adoption of the Civil Rights Act. The ploy failed and sex discrimination was abruptly added to the statute's prohibition against race discrimination. [citation omitted]."Id.
"The total lack of legislative history supporting the sex amendment coupled with the circumstances of the amendment's adoption clearly indicates that Congress never considered nor intended that this 1964 legislation apply to anything other than the traditional concept of sex. Had Congress intended more, surely the legislative history would have at least mentioned its intended broad coverage of homosexuals, transvestites, or transsexuals, and would no doubt have sparked an interesting debate. There is not the slightest suggestion in the legislative record to support an all-encompassing interpretation."Id.
Despite the fact that the number of persons publicly acknowledging sexual orientation or gender or sexual identity issues has increased exponentially since the passage of Title VII, the meaning of the word "sex" in Title VII has never been clarified legislatively. From 1981 through 2001, thirty-one proposed bills have been introduced in the United States Senate and the House of Representatives which have attempted to amend Title VII and prohibit employment discrimination on the basis of affectional or sexual orientation. None have passed.
H.R. 1454 Civil Rights Amendments Act of 1981 (Jan. 28, 1981 — 1st Session), rejected; H.R. 3371, Civil Rights Act of 1981 (May 1, 1981 — 1st Session), rejected; S. 1708, Civil Rights Amendments Act of 1981 (Sept. 9, 1981 — st Session), rejected; S. 430, Civil Rights Amendments Act of 1983 (Jan. 24, 1983 — 1st Session), rejected; H.R. 427, Civil Rights Amendments Act of 1983 (Jan. 3, 1983 — 1st Session), rejected; H.R. 2624, Civil Rights Amendments Act of 1983 (April 19, 1983 — 1st Session), rejected; S. 1432, Civil Rights Amendments Act of 1985 (July 15, 1985 — 1st Session), rejected; H.R. 230, Civil Rights Amendments Act of 1985 (Jan. 3, 1985 — 1st Session), rejected; S. 464, Civil Rights Amendments Act of 1987 (Feb. 4, 1987 — 1st Session), rejected; H.R. 709, Civil Rights Amendments Act of 1987 (Jan. 21, 1987 — 1st Session), rejected; S. 47, Civil Rights Amendments Act of 1989 (Jan. 3, 1989 — 1st Session), rejected; H.R. 655, Civil Rights Amendments Act of 1989 (Jan. 24, 1989 — 1st Session), rejected; S. 574, Civil Rights Amendments Act of 1991 (Feb. 6, 1991 — 1st Session), rejected; H.R. 1430, Civil Rights Amendments Act of 1991 (Mar. 13, 1991 — 1st Session), rejected; H.R. 423, Civil Rights Amendments Act of 1993 (Jan. 5, 1993 — 1st Session), rejected; S. 2238, Employment Non-Discrimination Act of 1994 (June 7, 1994 — 2nd Session), rejected; H.R. 431, Civil Rights Act of 1993 (Jan. 5, 1993 — 1st Session), rejected; H.R. 4636 Employment Non-Discrimination Act of 1994 (June 23, 1994 — 2nd Session), rejected; H.R. 382, Civil Rights Amendments Act of 1995 (Jan. 4, 1995 — 1st Session), rejected; S. 932, Employment Non-Discrimination Act of 1995 (June 5, 1995 — 1st Session), rejected; H.R. 1863, Employment Non-Discrimination Act of 1995 (June 15, 1995 — 1st Session), rejected; H.R. 365, Civil Rights Amendments Act of 1998 (Jan. 7, 1997 — 1st Session), rejected; S. 869, Employment Non-Discrimination Act of 1997 (June 10, 1997 — 1st Session), rejected; H.R. 1858, Employment Non-Discrimination Act of 1997 (June 10, 1997 — 1st Session), rejected; H.R. 311, Civil Rights Amendments Act of 1999 (Jan. 9, 1999 — 1st Session), rejected; S. 1276, Employment Non-Discrimination Act of 1999 (June 24, 1999 — 1st Session), rejected; H.R. 2355, Employment Non-Discrimination Act of 1999 (June 24, 1999 — 1st Session), rejected; H.R. 217, Civil Rights Amendments Act of 2001 (Jan. 3, 2001 — 1st Session), pending; S. 1284, Employment Non-Discrimination Act of 2001 (July 31, 2001 — 1st Session), pending; H.R. 2692, Employment Non-Discrimination Act of 2001 (July 31, 2001 — 1st Session), pending; Protecting Civil Rights for All Americans Act (Jan. 22, 2001 — 1st Session), pending.
In contrast to the numerous failed attempts by Congress to include affectional or sexual orientation within Title VII's ambit, neither plaintiff nor defendant can point to any attempts by Congress to amend Title VII in order to clarify that discrimination on the basis of gender or sexual identity disorders is prohibited. Neither party has identified any specific legislative history evidencing Congressional intent to ban discrimination based upon sexual or gender identity disorders.
The Court directed the parties to file supplemental briefs addressing whether, from 1982 to the present, Congress had made any attempts to amend Title VII to expressly include affectional or sexual orientation, preference or identity within the meaning of discrimination on the basis of "sex". Rec. Doc. No. 59. While the defendant identified numerous attempts to amend Title VII to specifically prohibit employment discrimination on the basis of "affectional or sexual orientation", neither party identified any proposed bill by either the House or the Senate to amend Title VII to specifically prohibit discrimination on the basis of gender or sexual identity.
Plaintiff argues that his termination by Winn-Dixie was not due to his crossdressing as a result of his gender identity disorder, but because he did not conform to a gender stereotype. In support of his argument, plaintiff relies on the United States Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Price Waterhouse, the United States Supreme Court held that discrimination on the basis of sex or gender stereotyping was discrimination because of "sex" within the meaning of Title VII. In that case, the partnership candidacy of the plaintiff, a senior manager who was the only woman of eighty-eight candidates considered for partnership, was placed on hold for a year. The Supreme Court noted that the evidence suggested that "[t]here were clear signs . . . that some of the partners reacted negatively to Hopkins' personality because she was a woman." (italics added). Partners at the firm criticized her because she was "macho", "overcompensated for being a woman", and suggested that she needed "a course at charm school". The most damning evidence of sex discrimination was the advice Ms. Hopkins was given to improve her partnership chances. She was told she should "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry."
Id.
The Supreme Court found that the plaintiff was discriminated against because of her gender, i.e., because she was a woman, in violation of Title VII. The Court explained:
In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In 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. . . .
As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "`[in] forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'" Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 1375, n. 13, 55 L.Ed.2d 657 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971). An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.490 U.S. at 250-251; 109 S.Ct. at 1790-1791.
In analyzing plaintiff's Title VII claim post Price Waterhouse, the Court notes that courts have long held that discrimination on the basis of sexual orientation is not actionable under Title VII. In Simonton v. Runyon, 232 F.3d 33 (2nd Cir. 2000), the court found that, "[b]ecause the term `sex' in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation, Title VII does not proscribe discrimination because of sexual orientation." 232 F.3d at 36. While the Simonton court did not decide whether the plaintiff was being discriminated against because of a sexual stereotype in violation ofPrice Waterhouse, it did observe:
The Court in Price Waterhouse implied that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title VII as discrimination because of sex. This theory would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine. But, under this theory, relief would be available for discrimination based upon sexual stereotypes.Id. at 38.
Long after Price Waterhouse was decided, courts have continued to hold that discrimination on the basis of sexual preference or orientation is not actionable under Title VII because it is not discrimination based on a person's "sex." Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) ("We hold no brief for harassment because of sexual orientation; it is a noxious practice, deserving of censure and opprobrium. But we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment — and we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation."); Spearman v. Ford Motor Co., 231 F.3d 1080, 1084-1085 (7th Cir. 2000), cert. denied, 532 U.S. 995, 121 S.Ct. 1656, 149 L.Ed.2d 638 (2001) ("Congress intended the term `sex' to mean `biological male or biological female,' and not one's sexuality or sexual orientation. [citation omitted] Therefore, harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII."); Mimms v. Carrier Corp., 88 F. Supp.2d 706, 713-714 (E.D. Tex. 2000) (Citing Smith v. Liberty Mutual Ins. Co., 569 F.2d 325 (5th Cir. 1978), the court agreed with the defendant that discrimination on the basis of sexual orientation is not actionable under Title VII, stating that "[n]either sexual orientation nor perceived sexual orientation constitute protected classes under the Civil Rights Act. Therefore, lacking membership in a protected class, the plaintiff's claim must fail as a matter of law."); Broadus v. State Farm Ins. Co., 2000 WL 1585257, at *4, n. 2 (W.D. Mo. 2000) (In a Title VII suit brought by a transsexual, the court rejected plaintiff's suggestion that harassment because of homophobia was protected by Title VII, stating that "Title VII's protections do not extend to discrimination on the basis of sexual orientation or sexual preference."); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001), cert. denied, 122 S.Ct. 1126, 151 L.Ed.2d 1018 (2002) ("Harassment on the basis of sexual orientation has no place in our society [citations omitted]. Congress has not yet seen fit, however, to provide protection against such harassment. Because the evidence produced by Bibby — and, indeed, his very claim — indicated only that he was being harassed on the basis of his sexual orientation, rather than because of his sex, the District Court properly determined that there was no cause of action under Title VII.").
After much thought and consideration of the undisputed facts of this case, the Court finds that this is not a situation where the plaintiff failed to conform to a gender stereotype. Plaintiff was not discharged because he did not act sufficiently masculine or because he exhibited traits normally valued in a female employee, but disparaged in a male employee. Rather, the plaintiff disguised himself as a person of a different sex and presented himself as a female for stress relief and to express his gender identity. The plaintiff was terminated because he is a man with a sexual or gender identity disorder who, in order to publicly disguise himself as a woman, wears women's clothing, shoes, underwear, breast prostheses, wigs, make-up, and nail polish, pretends to be a woman, and publicly identifies himself as a woman named "Donna."
There is no evidence that plaintiff was discriminated against because he was perceived as being insufficiently masculine, i.e., that he suffered adverse employment actions because he appeared to be effeminate or had mannerisms which were stereotypically feminine. This is distinguishable from Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001). In Nichols, the male plaintiff sued under Title VII alleging that he was verbally harassed "because he was effeminate and did not meet [his co-employees'] views of a male stereotype." Id. at 869. The Nichols court recognized that this was a Price Waterhouse claim alleging discrimination on the basis of sexual stereotypes, stating that "[a]t its essence, the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act. Sanchez was attacked for walking and carrying his tray `like a woman' — i.e., for having feminine mannerisms. Sanchez was derided for not having sexual intercourse with a waitress who was his friend. Sanchez's male co-workers and one of his supervisors repeatedly reminded Sanchez that he did not conform to their gender-based stereotypes, referring to him as `she' and `her.' And, the most vulgar name-calling directed at Sanchez was cast in female terms. We conclude that this verbal abuse was closely linked to gender. Price Waterhouse sets a rule that bars discrimination on the basis of sex stereotypes. That rule squarely applies to preclude the harassment here." Id. at 874-875.
Plaintiff's actions are not akin to the behavior of plaintiff in Price Waterhouse. The plaintiff in that case may not have behaved as the partners thought a woman should have, but she never pretended to be a man or adopted a masculine persona.
See also, Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir. 2000). In a Title VII case filed by a woman claiming that she was discriminated against on the basis of sexual stereotypes, the court found that the evidence presented a genuine issue whether male employees were treated better than she was. Id. at 495. The court observed:
As in Price Waterhouse, the evidence suggests that the employer here may have relied on impermissible stereotypes of how women should behave. Bellaver's evaluations are marred only by the repeated references to her interpersonal skills, but these same types of deficiencies seemed to be tolerated in male employees. Penny knew of the sexist double-standard, knew that men resented working with Bellaver because she was a woman and knew that the company had a reputation as a `good ol' boy' network. Penny sought Bellaver's firing in late 1996 or early 1997 because of her social skills, or lack thereof. The human resources manager . . . reviewed Bellaver's file and told Penny that he did not have cause to fire her based on her interpersonal skills. . . . Penny and Gulliford decided to fire Bellaver and have Penny, Hucker and others absorb her duties. A jury reasonably could find that this decision was motivated at least in part by the double-standard applied to men and women because only Bellaver [a woman employee] and not Breen, Arbizzani or Gulliford [all male employees], was criticized for being hard to get along with.Id. at 492-493.
This is not just a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. This is a matter of a person of one sex assuming the role of a person of the opposite sex. After a review of the legislative history of Title VII and the authorities interpreting the statute, the Court agrees with Ulane and its progeny that Title VII prohibits employment discrimination on the basis of sex, i.e., biological sex. While Title VII's prohibition of discrimination on the basis of sex includes sexual stereotypes, the phrase "sex" has not been interpreted to include sexual identity or gender identity disorders.
In holding that defendant's actions are not proscribed by Title VII, the Court recognizes that many would disagree with the defendant's decision and its rationale. The plaintiff was a long-standing employee of the defendant. He never crossdressed at work and his crossdressing was not criminal or a threat to public safety.
Defendant's rationale for plaintiff's discharge may strike many as morally wrong. However, the function of this Court is not to raise the social conscience of defendant's upper level management, but to construe the law in accordance with proper statutory construction and judicial precedent. The Court is constrained by the framework of the remedial statute enacted by Congress and it cannot, therefore, afford the luxury of making a moral judgment. As the Ulane court observed:
Congress has a right to deliberate on whether it wants such a broad sweeping of the untraditional and unusual within the term "sex" as used in Title VII. Only Congress can consider all the ramifications to society of such a broad view. We do not believe that the interpretation of the word "sex" as used in the statute is a mere matter of expert medical testimony or the credibility of witnesses produced in court. . . . If Congress believes that transsexuals should enjoy the protection of Title VII, it may so provide. Until that time, however, we decline in behalf of Congress to judicially expand the definition of sex as used in Title VII beyond its common and traditional interpretation.742 F.2d at 1086.
By virtue of the many courts which 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 disorders, sexual preference, orientation, or status, Congress has had an open invitation to clarify its intentions. The repeated failure of Congress to amend Title VII supports the argument that Congress did not intend Title VII to prohibit discrimination on the basis of a gender identity disorder. In reaching this decision, this Court defers to Congress who, as the author of Title VII, has defined the scope of its protection. Neither Title VII nor the United States Supreme Court's decision in Price Waterhouse affords plaintiff the protection that he seeks.
Disparate Treatment
Plaintiff's second claim is that he, as a male crossdresser, was treated differently than three women employees whom he observed wearing male clothing and who were not fired for being crossdressers. As explained in Portis v. First National Bank of New Albany, MS, 34 F.3d 325 (5th Cir. 1994):
Rec. Doc. No. 37, p. 15.
A Title VII plaintiff carries `the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.' International Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). . . .
A plaintiff may use either direct or circumstantial evidence to prove a case of intentional discrimination. [ United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, n. 3, 103 S.Ct. 1478, 1481, n. 3, 75 L.Ed.2d 403 (1983)]. Because direct evidence is rare, a plaintiff ordinarily uses circumstantial evidence to meet the test set out in McDonnell Douglas. This test establishes a prima facie case by inference, but it is not the exclusive method for proving intentional discrimination. "[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1984).
`Direct evidence is evidence which, if believed, proves the fact [of intentional discrimination] without inference or presumption.' Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993). In the context of Title VII, direct evidence includes any statement or written document showing a discriminatory motive on its face. [citations omitted].34 F.3d at 328-329.
"To establish a prima facie case of discrimination under Title VII, a plaintiff may prove her claim either through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The McDonnell Douglas test requires the plaintiff to show: (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated. [Citation omitted]. Once the employer articulates a legitimate, nondiscriminatory reason for the employment action, however, the scheme of shifting burdens and presumptions `simply drops out of the picture,' and `the trier of fact proceeds to decide the ultimate question: whether plaintiff has proved `that the defendant intentionally discriminated against [her]' because of [her sex]'." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998), cert. denied 525 U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422 (1998), reh'g denied, 525 U.S. 1117, 119 S.Ct. 894, 142 L.Ed.2d 792 (1999). "The plaintiff bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally discriminated against her because of her protected status." Wallace v. Methodist Hospital System, 271 F.3d 212, 220-221 (5th Cir. 2001), reh'g denied, ___ F.3d ___, 2001 WL 1748326 (5th Cir. 2001) (Table, No. 00-20255), cert. denied, 122 S.Ct. 1961, 152 L.Ed.2d 1022 (2002), citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) and St. Mary's, 509 U.S. at 511-12, 113 S.Ct. at 2749-50.
With respect to the proof necessary to establish a disparate treatment claim pursuant to Title VII, the Fifth Circuit has stated:
We have held that in order for a plaintiff to show disparate treatment, she must demonstrate "that the misconduct for which she was discharged was nearly identical to that engaged in by a[n] employee [not within her protected class] whom [the company] retained." Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam) (first and second alterations ours, third alteration in original) (quoting Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982)) [other citations omitted]. Or put another way, the conduct at issue is not nearly identical when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer. See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304-05 (5th Cir. 2000) (requiring the plaintiff to show that the company treated others differently in "nearly identical circumstances" and finding that "the striking differences between the two men's situations more than account for the different treatment they received.") (other citations omitted).Wallace, 271 F.3d at 221.
There is no evidence in the record establishing that any woman who worked for the defendant was a crossdresser, i.e., a woman who adorned herself as a man in order to impersonate a man and who used a man's name. While there were women working for the defendant who wore jeans, plaid shirts, and work shoes while working in the warehouse or in refrigerated compartments, there is no evidence that they were transgendered or that they were crossdressers, i.e., that they impersonated men and adopted masculine personas or that they had gender identity disorders. Plaintiff's claim for disparate treatment fails because he has not demonstrated a genuine issue of material fact with respect to this claim and the defendant is entitled to judgment as a matter of law.
Rec. Doc. No. 42, Exh. A, Istre Dep., p. 131, and Exh. I, Istre Dec., para. 4 and 6; Rec. Doc. No. 40, Exh. A, Oiler Dep., pp. 235-236, 238, 243-244, and 247.
Plaintiff acknowledged in his deposition that he did not know if the three female employees whom he alleged were similarly situated were crossdressers or transgendered. Nor did he know whether Winn-Dixie management perceived these female employees to be crossdressers or transgendered. Rec. Doc. No. 40, Exh. A, Oiler Dep., pp. 248-253.
Conclusion
Accordingly, for the above and foregoing reasons,IT IS ORDERED that the motion of defendant, Winn-Dixie, Louisiana, Inc., for summary judgment is GRANTED. IT IS FURTHER ORDERED that the motion of plaintiff, Peter Oiler, for summary judgment is DENIED.