Gender Identity Discrimination Claim Against CTA Rejected

Takeaway: Consistent, well-documented enforcement of Family and Medical Leave Act (FMLA) reporting procedures can support a legitimate, nondiscriminatory basis for discipline. Treat similarly situated employees consistently in applying disciplinary decisions and follow the regulatory process provided under the FMLA for resolving conflicts between medical opinions.

The 7th U.S. Circuit Court of Appeals affirmed summary judgment in favor of the Chicago Transit Authority (CTA) and Amalgamated Transit Union, Local 241, holding that a transgender bus operator failed to present sufficient evidence to support his claims of gender identity discrimination and retaliation under Title VII or for his claims of interference and retaliation under the FMLA.

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The CTA hired the plaintiff in 2016 as a bus operator, a position in which the plaintiff was represented by a union, Local 241. The plaintiff, who historically identified as a woman including prior to and when first employed with the CTA, began identifying as a man in 2017. During his transition, the plaintiff asked a union representative about the CTA’s bathroom policy. The union referred the plaintiff’s question to a CTA representative, who told the plaintiff he could use whichever restroom he preferred. 

In 2018, the plaintiff sought assistance from Local 241 regarding his claim for insurance coverage for a transition-related medical procedure that the CTA’s medical plan had denied. When Local 241 denied his request for assistance, the plaintiff engaged the American Civil Liberties Union to advocate on his behalf. The CTA subsequently expanded its health insurance benefits to include coverage for transition-related medical procedures.

In June 2020, the plaintiff applied for intermittent leave under the CTA FMLA policy to cover absences due to back pain (unrelated to his transition). The CTA used a third-party administrator, ReedGroup, to manage FMLA leave. Under the CTA FMLA policy, employees were required to report intermittent absences directly to ReedGroup, in addition to their work location. 

The plaintiff’s chiropractor submitted a medical certification to support the requested time off, but ReedGroup requested a second medical opinion because the plaintiff’s chiropractor had an unusually high number of certifications and a pattern of submitting certifications outside his specialty. The second opinion, from an orthopedist, concluded that the plaintiff did not qualify for FMLA leave.

When the parties disagreed, ReedGroup attempted to schedule a third, tie-breaking medical opinion, but the plaintiff did not respond to the letter or phone call seeking to schedule the appointment. In December 2020, ReedGroup denied the plaintiff’s FMLA application for intermittent leave.

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While his FMLA application was pending, the plaintiff continued calling in absences to his work location without reporting them to ReedGroup, even though he was aware of and previously complied with the policy to report absences to ReedGroup. By October 2020, the plaintiff had accumulated 24 absences that were not reported to ReedGroup and a CTA manager discovered the discrepancy. 

The plaintiff could not explain his failure to report the absences to ReedGroup, and the manager recommended termination for falsification of FMLA leave. On Jan. 7, 2021, the CTA terminated the plaintiff, citing his 24 unreported absences. Around the same time, the CTA also terminated four other bus operators who were not transgender at the same garage for the same type of FMLA falsification. 

Ultimately, the plaintiff filed a charge with the U.S. Equal Employment Opportunity Commission and subsequently filed suit in federal district court against both the CTA and the union alleging gender identity discrimination and retaliation under Title VII, and FMLA interference and retaliation against the CTA. The district court granted summary judgment in favor of both defendants on all claims. The plaintiff appealed to the 7th Circuit.

On the Title VII discrimination claim against the CTA, the 7th Circuit first confirmed that Title VII covers discrimination against transgender employees under Bostock v. Clayton County, because sex necessarily plays a role in decisions related to a person’s gender identity. The court then went on to apply the McDonnell Douglas burden-shifting framework and found that the plaintiff failed to identify a valid comparator, that is, a similarly situated, nontransgender employee who was treated more favorably. The court also found that the plaintiff failed to show that the CTA’s stated reason for his termination (FMLA falsification based on 24 unreported absences) was illegitimate or pretextual.

On the Title VII retaliation claim, the plaintiff argued that he was fired in retaliation for his earlier advocacy on behalf of transgender employees, including his questions about the transgender bathroom policy in 2017 and his advocacy in 2018 regarding the insurance coverage issue for transition-related medical procedures. 

The court found the plaintiff failed to identify evidence to support a finding of more recent protected activity and that there was no causal connection between the prior protected activity and his 2021 termination given the multiyear gap. The court also noted that the plaintiff failed to show the actual decision-maker for his termination was even aware of his earlier advocacy. The court emphasized that suspicious timing alone rarely supports an inference of retaliation, and that even a gap of a few months is generally insufficient, let alone the gap in the plaintiff’s case of several years.

On the FMLA interference claim, the court held that the plaintiff could not show he was entitled to FMLA leave because he failed to provide evidence that refuted the CTA’s position that he did not cooperate in good faith with scheduling the required third medical opinion. 

Under applicable FMLA regulations, his failure to cooperate bound him to the second (unfavorable) medical opinion denying his FMLA eligibility. The court also found that the plaintiff forfeited his FMLA retaliation claim because he failed to properly develop the argument before the district court.

Finally, on the plaintiff’s claims against the union, the court found that the plaintiff failed to show Local 241 treated him differently because of his transgender status. In fact, the court found that the record showed the union attempted to intervene on the plaintiff’s behalf to counter the termination decision in the same manner that it did for similarly situated union members who were not transgender.  

The plaintiff’s claim that a union official’s unsupportive comment about his prior complaints constituted retaliation also failed for lack of a causal connection to his earlier protected activity, given the lengthy time gap and absence of evidence of coordinated conduct between Local 241 and the CTA.

The 7th Circuit affirmed the district court’s grant of summary judgment in favor of both the CTA and the union on all of the plaintiff’s claims. The court concluded that the plaintiff failed to present sufficient evidence to create a genuine issue of material fact on any of his discrimination, retaliation, or FMLA claims. 

Brown v. Chicago Transit Authority, 7th Cir., No. 25-1750 (June 24, 2026), petition for rehearing and petition for rehearing en banc denied (July 24, 2026).

Jennifer L. Long is an attorney with Duane Morris in Chicago.