Transgender Woman’s Misgendering Claims Dismissed

By Jeffrey Rhodes December 17, 2019
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Transgender Woman’s Misgendering Claims Dismissed

​A transgender woman assigned to a government contract could not pursue a harassment claim based on co-workers' misuse of pronouns and other slights she allegedly endured prior to her removal from the contract, the U.S. District Court for the District of Maryland ruled.

In December 2012, the plaintiff was hired by CyberCore Technologies LLC, a professional services placement agency that provides skilled individuals to staff government contracts. CyberCore hired the plaintiff as a senior software engineer to work on a classified government contract managed by a federal government agency and the prime contractor, Northrop Grumman Corp. When hired, the plaintiff identified as a man.

In March 2013, the plaintiff began living full time as a woman. Before the plaintiff's transition, managers for CyberCore, Northrop Grumman and the federal government agency held a meeting, during which they explained to everyone that the plaintiff would be transitioning to female, would use the pronouns "she" and "her," and should be treated with dignity and respect.

The plaintiff alleged that certain co-workers on the project ignored this directive and engaged in discriminatory and harassing conduct. This included a CyberCore supervisor complaining that the plaintiff's skirt was too short, even though another employee also wore a short skirt; a co-worker telling the plaintiff that she hated transgender people; the plaintiff receiving verbal counseling for a loud discussion for which the other party was not also counseled; and two co-workers misgendering the plaintiff in the presence of a manager.

In addition, a co-worker complained to human resources that he was "walking on eggshells" around the plaintiff because of the plaintiff's request to be referred to by a female name and pronouns. Northrop Grumman placed the plaintiff on a performance improvement plan (PIP) during the plaintiff's probationary period, stating that the plaintiff's interaction with co-workers resulted in subpar performance. In that PIP, Northrop Grumman instructed the plaintiff not to complain in public forums and to treat all customers and co-workers with respect, and told her that the team feared creating a perceived slight or offense.

The PIP expired after 30 days, but in February 2014, Northrop Grumman required the plaintiff either to accept a layoff or be fired for having "a bad attitude." No other person was laid off at that time. In August 2014, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission and received a right-to-sue letter. The plaintiff filed a complaint against CyberCore and Northrop Grumman claiming unlawful hostile work environment, discrimination and retaliation because of sex in violation of Title VII of the Civil Rights Act of 1964.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

In December 2018, CyberCore filed a motion to dismiss, and Northrop Grumman filed a motion to dismiss only the harassment claim. In briefing the motion to dismiss, CyberCore included evidence beyond the allegations, providing the court with the alternative of deciding the case on a motion for summary judgment.

In opposition, the plaintiff included an expert opinion by a psychologist who reviewed the plaintiff's complaint and opined that the plaintiff was subjected to severe and pervasive harassment. The plaintiff also answered CyberCore's reply brief in support of dismissal.

The court determined that the plaintiff had not sufficiently alleged claims of harassment, discrimination and retaliation against CyberCore to survive a motion to dismiss. Concerning the hostile-work-environment claim, the court would not consider the plaintiff's expert testimony at that early stage of the litigation and found that the alleged conduct, which was mostly by co-workers and not management, was not sufficiently severe or pervasive to constitute harassment.

Concerning the unlawful termination claims, CyberCore argued that the plaintiff failed to apply for any open positions at CyberCore after being removed from the government contract. The court thus found that the complaint did not include sufficient allegations to support the plaintiff's unlawful termination claims against CyberCore.

The court granted the motion to dismiss without prejudice and allowed the plaintiff to replead the claims with additional allegations if she so chose.

Milo v. CyberCore Technologies LLC, D. Md., No. 18-cv-3145 (Sept. 17, 2019).

Professional Pointer: An employee's gender transition may place employers in a difficult position of seeking to protect the employee while also carefully addressing a range of co-worker reactions. Employers should proactively seek to prevent harassment claims by speaking with co-workers and reminding them of the need to respect the transgender employee.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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